1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 331 OF 2010 1 Shaikh Lal s/o Shaikh Miskin, age: 70 years, Occ: Business, R/o Peth Mohalla, At & Post and Taluka Parali Vaijnath, District Beed. 2 Shaikh Yasin s/o Shaikh Hyder, age: 74 years, Occ: Business, R/o Peth Mohalla, At and Post and Tq.Parali Vaijnath, District Beed. 3 Shaikh Rahim s/o Shaikh Chand, age: 70 years, Occ: Business, R/o Peth Mohalla, At and Post and Tq.Parali Vaijnath, District Beed. 4 Mehboobiya Education Society, Parali Vaijnath, District Beed, bearing P.T.R. No.F-131, Beed, through Shaikh Lal s/o Sk.Miskin- petitioner no.1. Petitioners Versus 1 Shaikh Karim s/o Shaikh Yasin, age: major, Occ: Business, R/o Peth Mohalla, At and Post and Tq.Parali Vaijnath, District Beed. 2 Joint Charity Commissioner, Latur Region, Latur. Respondents 2 Mr.C.R.Deshpande, advocate for petitioners. Mr.R.J.Godbole, advocate for Respondent No.1. Mr.K.M.Suryawanshi, A.G.P. for Respondent No.2. CORAM: R.M.BORDE, J. DATE : 06th April, 2010. ORAL JUDGMENT: 1 Heard learned Counsel for respective parties. Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 3 Petitioners have made a grievance in respect of direction issued by Joint Charity Commissioner, Latur Region, Latur, by order dated 18.11.2009, directing petitioners herein to join all the trustees of the Trust as parties to the application. 4 Petitioners herein presented an application to the Joint Charity Commissioner requesting him to take action as contemplated under Section 41D of the Bombay Public Trusts Act, 1950, against one of the trustees. The application is registered as Inquiry Application No.28/2005 and the Joint Charity Commissioner has framed charge against Respondent on 17.10.2008. The charge framed reads as under: That you respondent being the trustee of Trust, `Mehboobiya Education Society, Parali (V), Tq. Parali (V), Dist. Beed’, P.T.R. No.F-131-Beed committed persistent default in submission of audit and returns regarding trust since 1971 till 2007 and thereby committed act 3 actionable under Section 41D(a) of the Bombay Public Trusts Act, 1950. 5 It is pointed out that recording of evidence in the matter is already over and the matter was posted for judgment after argument of learned Counsel for respective parties were heard. It is stated that the Joint Charity Commissioner passed order on 18.11.2009 of his own directing the applicants to implead all trustees as parties to the application. A grievance is made that the order passed by Joint Charity Commissioner is in violation of principles of natural justice, as same is passed without hearing petitioners. 6 Learned Counsel for Respondent No.1 has contended that in view of the judgment in the case of Dr.Shantaram Balwant Mujumdar and another Vs. Ramchandra Dattatraya Kodre and another, reported in 1996 (2) B.C.J. 15, it is necessary for the petitioners to join all the trustees as party to the application. It is also contended that in view of Section 32 of the said Act, it is the responsibility of trustees to maintain accounts and as such presence of all the trustees before the Court is necessary. 7 Learned Counsel for petitioners has controverted the contention saying that Section 32 does not cast responsibility on each and every trustee to maintain accounts and does not call for an order of impleadment of all the trustees to the application by taking recourse to Section 32 of the Act. 8 It would be open for the Joint Charity Commissioner to take into consideration all the aspects and pass appropriate order after hearing all the parties. Learned Joint Charity Commissioner also shall have to bear in 4 mind scope of inquiry under Section 41D of the Act and shall pass order as per parameters laid down by this Court in the case Mallikarjunappa s/o Sidramappa Bidve and others Vs. Joint Charity Commissioner, reported in 2008 (1) Mh.L.J. 148, which are apt to be quoted. Those are as under: “The legal position, which may be kept at back of the mind is that removal of a trustee is a drastic action. The charge of malfeasance and/or misfeasance is serious one. The proceedings are of quasi civil and quasi criminal nature. Though the proceedings under section 41D is not criminal proceeding as such, yet, proof required to sustain the charges is of high standard. The standard of proof in such proceedings is somewhat more than normally required in cases governed by preponderance of probabilities and somewhat less than required in trials of criminal cases. The degree of proof required in criminal case is such that would prove criminal charge beyond a reasonable realm of doubt. The imputation reflecting on integrity of trustees have to be fortified by proof of high degree which would be somewhere in between standard of proof required in civil proceedings like a suit and criminal proceedings like a trial for offence of criminal breach of trust, or that of cheating. Thus, unless the lapse on part of the trustee is proved to be actuated by dishonesty or active connivance with other trustees, who are guilty of misfeasance or malfeasance, the drastic action under section 41D of the BPT Act, may not be warranted. The expression “misfeasance” as used in clause (c) of section 41D would imply commission of breach of trust. It is more than mere negligence of the trustee to perform his duty. “Misfeasance” includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with act of misfeasance.” 9 Considering the contentions raised by learned Counsel for 5 respective parties, order dated 18.11.2009, passed by Joint Charity Commissioner, Latur Region, Latur, below Exhibit-1 in Inquiry Application No. 28/2005 needs to be quashed and set aside and same is accordingly set aside. Learned Joint Charity Commissioner is directed to hear all the parties and pass appropriate order. 10 Rule is accordingly made absolute. There shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp33110