1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 1879 OF 2007 (Dr.Pramilatai V. Tople and others .v. Dr.Radheshyam B. Somani and another) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri A.M. Ghare, Advocate for the petitioners. Shri M.G. Sarda, Advocate for the respondents. CORAM : R.V. MORE, J. 29TH APRIL, 2008. Heard the learned Counsel appearing on behalf of the respective parties. By the impugned order, the learned Ad hoc District Judge-II, Akola remanded the matter back to the learned Joint Charity Commissioner, Amravati to consider allegations regarding irregularities at the hands of the petitioners and other respondents which came to be inserted in original pleading by way of amendment and to decide as to whether additional charges required to be framed in the matter. The respondents filed proceedings under Section 41-D of the Bombay Public Trust Act, 1950 against the petitioners seeking removal on the grounds mentioned in the said application. By the order dated 30.04.2005, passed by Joint Charity Commissioner the petitioners came to be removed from the Trust for the 2 period of three years. The petitioners thereafter preferred an application under Section 41-D(5) of the Bombay Public Trust Act challenging the above order of learned Joint Charity Commissioner. The learned Ad hoc District Judge-II, by an order passed in the month of October, 2005, granted stay to the operation, effect and implementation of the above order. On 03.12.2005, the respondents filed an application before District Court for amendment of the original application under Section 41-D of the Bombay Public Trust Act. In spite of opposition, the said application came to be allowed. Shri A.M. Ghare, the learned Counsel appearing on behalf of the petitioners and Shri M.G. Sarda, the learned Counsel appearing on behalf of the respondents have fairly stated that the order granting amendment is confirmed by this Court and thereafter by the Apex Court. The respondents thereafter filed the present application below Exh.55 for framing of additional issues and for remand of the matter to the learned Joint Charity Commissioner. This application was filed in view of the subsequent irregularities brought on record by an amendment. The learned Ad hoc District Judge-II, Akola, by the order impugned in the petition, remanded back the 3 matter to the learned Joint Charity Commissioner to consider allegations regarding irregularities at the hands of the petitioners and other respondents which allegations came to be inserted in original pleading by way of amendment and to decide as to whether additional charges required to be framed in the matter and if it revealed to him that the additional charges are required to be framed then by following due process the learned Joint Charity Commissioner was authorized to frame additional charges in the matter and to decide it by following due process of law and to inform about such additional charges as well as findings thereon to the learned Ad hoc District Judge-II, Akola so as to enable him to proceed further to decide appeal under sub Section (5) of Section 41-D. Shri A.M. Ghare, the learned Counsel appearing on behalf of the petitioners made two folds submissions. Firstly, there is no power with the Court to remand the matter to the learned Joint Charity Commissioner. In this regard, he relied upon the judgment of the learned Single Judge in the case of Vasantrao Vishwanathrao Mane and others .v. Apparao Baibanna Sidore and others (reported in 2008(2) Bom.C.R., 662) and secondly the learned Joint Charity Commissioner should not reopen the finding already 4 given, taking advantage of the impugned order. He also objected to Clause 4 of the operative part of order. Shri M.G. Sarda, the learned Counsel appearing on behalf of the respondents, on the contrary, supported the impugned order. He submitted that he has no objection if Clause 4 of the operative part of the order is quashed and set aside. He also submitted that he has no objection if it is observed that the learned Joint Charity Commissioner shall not reopen the finding already recorded. Insofar as the first submission of Shri Ghare, the learned Counsel for the petitioners that the Court has no power to remand the matter and his reliance on the judgment of Vasantrao (supra) is concerned, I find no merit. The ratio laid down in Vasantrao's case (supra), in my opinion, cannot be made applicable to the facts and circumstances of the present case, inasmuch, the learned Single Judge in that case was dealing with the provisions of Section 72 vis-a-vis the provisions of Order 41 Rules 25 and 27 of the Code of Civil Procedure. Under the provisions of sub Section (1)(a) and sub Section (2) of Section 72 of the Bombay Public Trust Act, the party is entitled to produce additional evidence, of course, subject to the satisfaction of the Court that the same is necessary. In view of these specific provisions 5 the additional evidence under Section 72, in my opinion, the learned Single Judge held that there is no need to remand the matter to Joint Charity Commissioner in the absence of express power to that effect. However, the present proceeding is filed under Section 41-D of the Bombay Public Trust Act. There is no provision similar to sub Section 1(a) and sub Section (2) of Section 72 in Section 41-D(5). Section 76 of the Bombay Public Trust Act makes the provisions of Code of Civil Procedure applicable to the proceedings before the Court under the Bombay Public Trust Act. Present application at Exh.55 is filed under Order 41 Rule 25 of the Code of Civil Procedure and the District Court while passing impugned order, has exercised the power under Order 41 Rule 25of Code of Civil Procedure. Be that as it may, the learned Single Judge of this Court in the case of Vithalrao Dattobaji Khandagale and others .v. The State of Maharashtra and another (reported in 1988(4) Bom.C.R., 417) has categorically held that the power of remand is also an inherent power in every appellate Court and Tribunal which is necessary to do justice to the lis before the appellate Court and to deal with all the questions raised before it effectively. In view of the above discussion, I find no fault in the impugned order whereby the matter is remanded back 6 to the learned Joint Charity Commissioner, Amravati. Insofar as the rest of the submissions of the petitioners are concerned, Shri Sarda, the learned Counsel for the respondents has no objection if it is observed that the learned Joint Charity Commissioner is not entitled to reopen the finding already given and the clause 4 of the operative part of the order is quashed and set aside. In that view of the matter, I dispose of the petition by passing the following order. (i) Clause 4 of the operative part of the impugned order is quashed and set aside. Needless to mention that the original order below Exh.5 in MJC No.69/2005 will revive. (ii) Rest of the impugned order is confirmed subject to direction that the learned Joint Commissioner while dealing with the matter after remand, will not reopen the finding already given. With these observations, the petition stands disposed of with no order as to costs. JUDGE *rrg.