:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5572 OF 2006 Ashok Chandgude ....Petitioners Versus Sant Dnyaneshwar Maharaj Sansthan Committee & Ors. ....Respondents Mr.A.Y.Sakhare Sr.Adv i/by. S.S.Kulkarni for the petitioners. Mr.M.G.Vasudev with Mr.M.G.Gawade for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: .....January, 2008. JUDGMENT : 1. By this petition under Article 226 and 227 of the Constitution of India, the petitioners are challenging an order dated 9.8.2006 which has been passed in pursuance of the orders and directions of :2: :2: :2: this court. The petitioner is aggrieved by the fact that the learned District Judge has removed him from the position of a Trustee of the First Respondent Trust. The petitioner no.1 is a Retired police officer and is Residing at Pune. The petitioner no.2 is a Medical practicioner residing at Alandi, Taluka-khed, District-Pune. 2. The factual backdrop in which the challenge to the impugned order arises as under : 3. On 11th December, 1937 the District Court in Civil Suit No. 7 of 1934 settled the scheme for the management of the 1st Respondent Sansthan, framed in 1852, by issuing directions necessary to supplement the scheme. The Trust in question is known as Dnyaneshwar Maharaj Sansthan, Alandi in District. Pune. Shree Sant Dnyaneshwar is known throughout the spiritual world and particularly Maharashtra as an Intellectual Saint. His teachings and works are respected and reverred by countless number of people. The Scheme was framed for proper and efficient administration of the Trust. The District :3: :3: :3: Judge, Pune was chosen as a person who enjoys Trust and confidence of all concerned including followers of the Saint. 4. The scheme came to be modified by the said directions. On 16th November, 1939 the scheme modified by the District Court in abovesaid suit came to be further modified with regard to Clause (3) so also Clause (3a) is inserted. Earlier, Clause (3) modified by the District Court contemplated that any vacancy can be filled by appointment of District Judge from amongst nomination for cooption by the committee. However, the said clause came to be modified and it was clarified that District Judge acts "persona designata" and he will fill up vacancy in the Committee from among those nominated for cooption by committee provided that the committee to nominate not less than five names for each vacancy that may occur and further the District Judge is also conferred with a power to call for further names from trustees if necessary. Clause 3(b) prescribed maximum age limit of 71 years. Further, clause (3a) :4: :4: :4: came to be inserted by consent, whereby maximum tenure was prescribed for office of trustee, which was not provided earlier by District Court and further continuation of tenure is permitted beyond the period of seven years provided he is re-appointed. 5. In view of this background, it is clear that District Judge is vested with power of appointment by selection out of list of minimum five persons nominated by committee and if he is not satisfied with said list of nominated candidate, then, he has power to call for further list. Further, by virtue of clause (3a) tenure comes to an end upon expiry of seven years, provided trustee is not re-appointed. In short, it is incumbent upon the Learned District Judge to follow the procedure envisaged in the scheme for appointment/re-appointment failing which appointment/re-appointment is not valid. 6. One, Ramchandra Nagesh Gohal came to be appointed as a Trustee and he retired with effect from 1st August 2001 on completion of seven years :5: :5: :5: tenure. Thereafter, according to the petitioners, a resolution is passed by the then trustees and they recommended five names for appointing one trustee in the vacancy of Mr.Gohal vide Resolution dated 5th October, 2001. On 20th October 1996 one Mr.S.V.Joshi came to be appointed as Trustee of the respondent no.1 for a period of seven years and his term of appointment was to expire by end of 19th October, 2003. Similarly, Mr.Jadhav came to be appointed on 21st November 1996 for a period of seven years and his term was to expire on or before 9th November 2003. 7. Thereafter, on 20th October, 2003 respondent no.1 in its meeting passed various resolutions. The respondent no.1 passed a resolution at subject No.4427. It is specifically mentioned in the said resolution that the period of Mr.Joshi and Jadhav was expiring on 13th October, 2003 an 8th December 2003. It further mentions that Mr.Joshi has applied for re-appointment. Therefore, there was a discussion in the meeting regarding their re-appointment. The respondent no.1 vide its :6: :6: :6: resolution no.4427 resolved that they will apply for re-appointment of Mr.Joshi and Mr.Jadhav as trustees, to the District Judge, Pune. 8. The Learned District Judge passed an order observing that Mr.Joshi shall stand retired with effect from 21st October 2003 afternoon. The proposal for his re-appointment is turned down by him. The District Judge vide order dated 5th December, 2003 further noted retirement of Mr.Jadhav with effect from 8th December 2003 and the proposal of re-appointment was turned down by him. The District Judge vide letter dated 4th June 2004 called upon the Trust to forward list of candidates for appointment/re-appointment as trustee i.e. for filling of vacancies. It is a matter of record that the then Chief Trustee viz., Dr.Suresh Garsole prepared list of 24 persons for appointment as Trustee and forwarded it to the learned District Judge, Pune. On 24th January 2005, the District Court called upon the respondent no.1 to forward list of candidates. :7: :7: :7: 9. On 28th January 2005, the then Chief Trustee Ashok Chandgude filed an application under Section 47 of the Bombay Public Trusts Act, 1950 before the Charity Commissioner, Maharashtra. Same was not accepted by him. On 22nd February 2005 the then Chief Trustee filed Writ Petition No. 1065 of 2005 for seeking direction to learned Charity Commissioner to hear and decide application under Section 47 of the Bombay Public Trust Act. This court passed an interim direction on 4th March 2005 directing Charity Commissioner to hear and decide the application under Section 47. The Charity Commissioner vide his judgment and order dated 1st April 2005 disposed off application under Section 47 of the Bombay Public Trust Act. It appears from the order passed by him that he has gone through the scheme and according to Clause (3) he had interviewed 24 persons and out of the list of 24 persons sent by respondent no.1, he had appointed the above persons as a stop gap arrangement till the vacancy is filled by the District Judge, Pune. 10. The petitioners state that the then Hon’ble :8: :8: :8: District Judge, Pune had totally overlooked the earlier orders dated 21.10.2003 and 05.12.2003 and the records and proceedings and further in utter ignorance of Clause 3(a), has straight away given effect to the Resolution No.4427 duly forwarded by the Respondent no.1 vide its letter dated 21.10.2003. A copy of the Judgment and order dated 16.07.2005 passed by the then Learned District Judge is placed on record of this Writ Petition (Exhibit-4). 11. The petitioners state that thereafter two Writ Petitions came to be filed in this Hon’ble Court against the order (Exhibit-4) passed by the Hon’ble District Judge, Pune, being Writ Petition no. 4910 of 2005 and No.549 of 2006. The petitioners state that after hearing all parties, this Court vide its Judgment and Order dated 07.04.006 disposed off both the Writ Petitions by a common order with a direction to the learned District Judge, Pune to take steps to appoint the Trustees in accordance with the provisions of the Scheme and in accordance with law. This Court further directed that the :9: :9: :9: entire exercise of Appointment of Trustees should be completed within a period of three month from the date of receipt of the said order. A copy of the order dated 07.04.2006 passed by this Court is annexed as Exhibit-I . 12. The petitioners state that thereafter the learned District Judge, Pune.,- Respondent no.6 herein, vide her Judgment and Order dated 05.08.2006 removed one Shri Ashok Ramrao Palande and two other Trustees who had been appointed as a stop gap arrangement by the learned Charity Commissioner under Section 47 of the B.P.T.Act, 1950 and appointed one Shri Pimple from the list of names recommended by the Board of Trustees for filling up the three vacancies. Annexed and marked Exhibit-J, is a copy of the said Judgment and Order dated 05.08.2006 passed by the Learned District Judge. 13. The petitioners state that thereafter the Hon’ble District Judge, Pune., vide the impugned Judgment and Order dated 9.8.2006 removed the :10: :10: :10: present petitioners as permanent Trustees of the Respondent no.1 Trust with immediate effect along with Dr.S.G.Garsole and further appointed an Advisory Committee consisting of Respondent nos.2 to 5 herein. The Hon’ble District Judge further directed the Respondent no.1 Trust to make arrangements for publication of a notice in the newspaper thereby inviting applications for appointment of Trustees of Respondent No.1 Trust within a period of fifteen days. The petitioners submit that it is against the said impugned order dated 9.8.2006 that they are constrained to approach this Hon’ble court and file the present Writ Petition. 14. Mr.Sakhare, learned Senior Counsel appearing for the petitioners submits that the impugned order is passed without issuing any notice to them and without following the principles of natural justice. Mr.Sakhare, contends that the scheme does not envisage removal of petitioners and trustees or appointment of any Advisory Committee. The power of removal is not conferred on the District Judge but :11: :11: :11: by virtue of specific provisions contained in Section 41D of the Bombay Public Trust Act, 1950 the same can be exercised only by the Charity Commissioner. He has invited my attention to the scheme and provisions of the Bombay Public Trust Act in support of his submission. He submits that even the Civil Procedure Code and more particularly Sections 91 and 92 ceased to be in operation and do not remain in force after the Bombay Public Trust Act was enacted by the Maharashtra State. Even the General Clauses Act, 1897 and Section 16 thereof cannot be invoked as that clearly contemplates, a different intention appearing, then, same would have no application. 15. On the other hand Mr.Vasudev appearing for the Respondents supports the impugned order. He submits that the said orders having been passed during the course of making appointment by the Learned District Judge, there is no substance in the contention that the petitioners have been removed. On this ground alone, the petition be dismissed. :12: :12: :12: 16. For properly appreciating the rival contentions, it would be worthwhile to note that the earlier Writ Petition which was filed in this court and based upon which the impugned order has been passed, has been filed by one of the petitioners in the present petition. The order under challenge in that petition was of the then District Judge who had directed the Trustees to submit the list of five eligible persons for filling up vacancy of the Trustees, after discharging one temporary trustees. Two vacancies were directed to fill in by re-appointment of the existing Trustees. 17. That Writ Petition challenged the said order on the ground that the District Judge did not have any power to issue such directions. The scheme was referred to by this court and after exhaustively referring to the same this court was of the view that the Trustees at that stage had recommended re-appointment. However, the documents which were produced at the relevant time show that the Trustees called upon the Charity Commissioner to fill in the vacancies. The Charity Commissioner made some :13: :13: :13: interim arrangement and therefore the District Judge after referring to the order of the Charity Commissioner observed that the said order makes a temporary arrangement. Three temporary trustees were appointed. The permanent postings in these three vacancies shall be filled in accordance with the scheme. Despite being aware of the temporary arrangement made by the Charity Commissioner, the District Judge, without adhering to the scheme, passed an order impugned in that Writ Petition. That order was delivered on 16.7.2005. This court therefore directed the District Judge to implement his own decision taken on 25.4.2005 and quash and set aside his order dated 16.7.2005. This court issued further directions to appoint the trustees by filling up the vacancies. 18. The District Judge has after undertaking that exercise had appointed one Sudhir B.Pimple as a trustee in place of the temporary trustee, Ashok Ramrao Palande. That order of the District Judge has been upheld by me in the companion Writ Petition. However, the learned Judge continued the :14: :14: :14: other two temporary trustees appointed by the Charity Commissioner as Temporary Trustees until further orders. While doing so, the District Judge had passed a further order on 9.8.2006 which reads as under :- ". Shri A.K.Chandgude, Dr. Sarang V. Joshi and Dr.S.G. Garsole, the permanent trustees of Shri Dnyaneshwar Maharaj Sansthan Alandi, are discharged from the post of Trustee with effect from today. The order of discharge of Dr. S.G.Garsole will have no effect on the complaint made to the District Judge against him of financial irregularities. An Advisory Committee consisting of (1) Shri Bal J. Pandit (2) Shri Vasudeo Sitaram Rane, (3) Shri Prabhakar Laxman Gavade and (4) Prin Vasantrao Krishnaji Nulkar is formed to advice and assist Shri Sudhir Nnyaneshwar Pimpale, permanent trustee of Shri Dnyaneshwar Maharaj Sanstha, Alandi. The members of the Advisory Committee be immediately furnished with a copy of the order. The trust shall make arrangements for publication of a notice in newspaper inviting applications for appointment of trustees of Shri Dnyaneshwar Maharaj Sansthan, Alandi within a period of fifteen days from today. The operative part of the order be served upon the Banks with which the trust holds accounts." . That is the order impugned before me. 19. At no stage, has the learned Judge ever :15: :15: :15: referred to any complaints or has indicated in the order of 9.8.2006 that the petitioner no.1 Ashok Changude is a temporary trustee and therefore should be removed. Infact, the learned Judge was aware of the directions of this court. The Learned Judge was aware that the Temporary Trustees as per the order of the Charity Commissioner are Mr.Ashok Ramrao Palande, Vasant Nyaneshwar Patil and Bala (Vasudev) Dattatray Zanjale. The question was of only filling up the temporary vacancies, by appointing permanent trustees in accordance with the scheme. There is no question of any other action being taken. 20. The Learned District Judge was aware of this fact, that the Issue was of appointing three trustees in place of the temporary trustees. In other words, filling up vacancies. I have perused the order of 5th August, 2006. That order does not indicate anything insofar as the first petitioner is concerned. In these circumstances, what was the occasion for removing the petitioner no.1 is not clear to me at all. The petitioner no.1 was working as a Trustee is clear from the communications which :16: :16: :16: are addressed by him. He had also pointed out the irregularities committed by one, Mr.Gharsole. He has been actively involved in the management of Respondent No.1. Both petitioners have corresponded exhaustively. In such circumstances, I am of the opinion that the Learned District Judge has not abided by the order passed by this court on 7.4.2006 in removing the petitioner no.1. The order passed on 9.8.2006 insofar as, relevant for the present petition reads as under :- . Under the Scheme, the District Judge Pune as a "persona designata" is the controlling authority of the Trust. As such I have been receiving several complaints inter se the trustees and also against the trustees made by the devotees. The disputes and complaints were at the climax at the time of Pandharpur Wari for the year 2006. The ten of the complaints made by the Trustees inter se give an indication of deep fissures between the Trustees. The complaints are all pervading starting from the behaviour of the trustees to the financial irregularities. Most of the complaints have indicated in no unmistakable term that the trustees have lost confidence of the devotees. There are complaints made by Shri A.K. Chandgude against Shri Sarang Joshi and Shri Garsole jointly and also independently against Shri Garsole. There are five complaints received against Shri Chandgude in the year 2003, five in the year 2004, one in the year 2005 and several in the year 2006. Similarly, there are many complaints received against Shri :17: :17: :17: Sarang Joshi. It is also noticed that there are several irregularities in the functioning of the Trust. The magnitude of the irregularities is such that it has hurt the sentiments of the devotees of Sant Dnyaneshwar. Since the acceptability and credibility of Trustees in the heart of devotees of Sant Dnyaneshwar has to be sacrosanct for a trustee, it is not possible to ignore the complaints. Since it will not be possible to narrate each and every complaint at this place, I am outlining a few of serious complaints and irregularities committed by all the trustees including the temporary trustees. . Shri Dnyaneshwar Maharaj Sansthan rule of 1945 makes provisions in detail for the management of the trust and holding several functions including Palakhi Sohola. The schedule for all the functions and traditional procedure to be followed is specified in the rules and the schedules appending the same. Rule 54 requires that any change in respect of either the date or the time or the halting place etc of the Palakhi Sohala can be made only after due notice to the District Judge and with his prior sanction. On 2nd of June 2006, a printed schedule of Palakhi Sohola was received by the District Court Office. It was not even accompanied by a covering letter. The printed schedule was obviously for distribution to general public. The schedule showed that it varied from the approved schedule at the statement appended to the rules. Since the Sansthan Committee had published the schedule in breach of the rules framed for its working, by the letter dated 3rd December 2006 addressed to all the trustees, a meeting was called in my chamber at 5.00 p.,m. The meeting was attended by all the trustees except Dr.Garsole. During the meeting it was revealed that the entire schedule was printed and made available for distribution a week back. When non-compliance of mandatory Rule 54 was pointed out to the :18: :18: :18: trustees initially an attempt was made to justify the conduct. But later on realisation of seriousness of the issue, they stated that they would send an application on 5th of June 2006 for post facto sanction. The alteration as made was being objected to by different groups of people. The trustees sent letter dated 3rd June 2006 apologizing for non-compliance with the rules. By the order dated 5th of June 2006, post facto sanction came to be given to the altered schedule out of consideration for Warkaris and deference to the deity. . There are more than 35 complaints made by the three trustees against each other. The nature of the complaints and the tenor is hardly befitting a representative of the shrine of Sant Dnyaneshwar Maharaj. The extent of divide amongst them is so deep that there were times when one of the trustees had locked the cupboards in the office and prevented the other trustees an access to the trust documents. Thus it is ex-facie patent that the permanent trustees Shri A.K.Chandgude, Dr.Sarang V.Joshi and Dr.S.G.Garsole and the two temporary trustees Shri V.D.Zanjale and Shri V.D.Patil have lost confidence of the devotees. They have committed breaches of the provisions of the scheme and the Rules. Their management of the Trust is not proper and there is too much in fighting between them for cohesive and smooth functioning. If the permanent trustees are allowed to complete their term and if the temporary trustees are allowed to function until the whole process for filling up the remaining two vacancies is completed, it is going to cause serious damage to both the prestige as well as property of the trust, Therefore, it is imperative in the interest of the Trust that these trustees are equally responsible for the administration of the trust during their tenure as temporary trustees and deserve to be removed alongwith the permanent trustees, in view of the order :19: :19: :19: dated 7th April 2006 passed by the Hon’ble High Court in Writ Petition No. 4910 of 2005, they will have to be continued until such time as the regular appointments are made in their place. They will however, not take any independent decision in respect of any matter concerning the Trust without the consultation and knowledge of the permanent trustees and the Advisory Committee proposed to be formed. . I am conscious that ordinarily when a person is required to be removed from any post to which he is appointed, the principle of natural justice require that he be given an opportunity of hearing by holding an enquiry against him. However, after giving deep thought to this aspect, I have come to the conclusion that the extraordinary circumstances prevailing at the trust need an extraordinary remedy. In such situation, if the remedy proposed is not effective enough like a surgical remedy, it may lead to worsening of the malady. It may be noted that the office of the Trustee of Shri Dnyaneshwar Maharaj Sansthan is a honorary position and not attached with remuneration. Therefore, in my considered opinion, conducting of enquiry should be dispensed with. I have also taken care to consider only such of the complaints and the allegations which are entire undisputed or the conclusions concerning the same are already drawn in other proceedings. I have found these allegations and complaints sufficient in themselves to take the decision. I have not dwelt upon any of the complaints, how muchsoever serious, which may involve disputed questions of fact. " 21. In my view, without going into the wider question as to whether the District Judge had the power to suspend or dismiss the Trustee or whether :20: :20: :20: the order passed with regard to the subject scheme gets superseeded by the substantive law, namely, the Bombay Public Trust Act, 1950, it is clear that the Learned Judge has not given any notice to the petitioners when they were removed by her. The Learned Judge was well aware that they are permanent trustees. Assuming that there were some complaints on record, yet, the District Judge was not justified in passing an order of their removal in their absence. She has herself observed that principles of natural justice would require giving of an opportunity of hearing by holding an inquiry against them. In such circumstances, her decision to remove the present petitioners cannot be sustained. The same is clearly contrary to the principles of natural justice. 22 In this behalf, a reference can usefully be made to Section 41(D) of the Bombay Public Trust Act, 1950. The same reads thus :- 41D. 41D. 41D. Suspension, removal and dismissal of Suspension, removal and dismissal of Suspension, removal and dismissal of trustees trustees trustees (1) The Charity Commissioner may, either on application of a trustee or any person :21: :21: :21: interested in the trust, or on receipt of a report under Section 41B or suo motu may suspend, remove or dismiss any trustee of a public trust, if he,- (a) makes persistent default in the submission of accounts report or return; (b) wilfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or rules made thereunder by the State Government. (c) continuously neglect his duty or commits any mal-feasance or misfeasance, or breach of trust in respect of the trust; (d) misappropriates