1 SSK/34 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4181 OF 2009 Mrs. Hamida Banu Yunus Sobhani & Ors. ....Petitioners Versus Mr. A. M. Merchant & Ors. ...Respondents Mr. M. S. Karnik, Advocate for the Petitioners. Mr. G. S. Godbole a/w. Mr. Aras i/b. M/s. Aras & Co., Advocates for Respondent Nos. 2 & 3. CORAM : R. V. MORE, J. DATED : 29TH JUNE, 2010. P.C.: Heard Mr. Karnik and Mr. Godbole, learned Counsel for the Petitioners and Respondent Nos.2 and 3 respectively. 2. By the order impugned in the petition, the Petitioners’ application under section 41D of the Bombay Public Trusts Act, 1950 for removal/dismissal of Respondents/Trustees came to be dismissed. 3. The Applicants are the beneficiaries of the Trust by name Bai Khatijabai Abdul Latif Haji Joonas Sobani Charitable Trust. On the basis of the allegations made in the application, the learned Joint Charity 2 Commissioner framed 8 Charges, out of those 8 Charges, Charge Nos. 1, 5, 6 and 7 were subject matter of an earlier proceedings. However, those proceedings came to be withdrawn by the Applicants and therefore, the allegations under those charges are not required to be considered. 4. The learned Joint Charity Commissioner considered Charge Nos. 2, 3, 4 and 8. After hearing the parties, the learned Joint Charity Commissioner came to the conclusion that stringent action under section 41D is not warranted. Charge No.2 is about failure of the Trust to establish Orphanage for the Muslim girls as per the scheme of the Trust. It is the stand of the Respondents/Trustees that the amount of approximately Rs.15,00,000/- was at the disposal of the Trust, which amount would not be sufficient to establish an orphanage. The learned Joint Charity Commissioner accepted the explanation given by the Respondents/Trustees and held that charge no.2 is not proved. Charge No.3 is that the Respondents/Trustees have spent large amount of money under the head “Salary to the Staff” and such payments have been made under the guise of payment of the Provident Fund Contribution etc. The Applicants, however, did not adduce any evidence in 3 support of this charge and therefore, the Joint Charity Commissioner rightly held that the charge is not proved. Charge No.4 is about failure to utilize the amount of Rs.5,000/- collected from the Occupant for the repairs of the building of the Trust, situated at Antop Hill, Wadala and Charge No.8 is that the Respondents have committed persistent default in submission of the audited accounts of the Trust and committed the act of mal-feasance and mis-feasance. So far as these charges are concerned, there is no evidence in support of the allegations made by the Applicants and therefore, these charges are also held not proved. 5. It is now settled principle that even if a proceeding under section 41D of the Bombay Public Trusts Act, 1950 be not a criminal proceeding, the proof required to sustain charges therein must satisfy a higher standard than that normally required in cases governed by the rule of preponderance of probabilities. 6. Taking over all circumstances into consideration, I find no error in the findings recorded by the Joint Charity Commissioner that the Petitioners failed to prove these charges. The petition being devoid of any substance is dismissed as such. 4 7. The above observations are made for the purpose of disposal of the present proceedings and same will not come in the way of the Petitioners in proceedings, if any, that may be filed by them for enhancement of maintenance. (R. V. MORE, J.)