1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.560/2009 1] Amar S/o Rajesaheb Deshmukh Age-26 years, Occ-Agril & Business R/o Ganeshpar, Parali-V, District Beed. 2] Anant s/o Purushottam Deshmukh Age 32 years, Occ-Agril R/o Deshmukh Galli, Parali-V., Dist.Beed. 3] Rajesh @ Jaywant S/o Vitthalrao Deshmukh Age-38 years, Occ-Agril R/o Opp.Krishna Cinema Parali-V, Dist.Beed. .. PETITIONERS VERSUS 1] Bhanudas S/o Madhavrao Deshmukh Age 72 years, Occ-Agril. & Business, R/o Madhav Baug, Parali-V District-Beed. 2] Gopalkrushna s/o Bhanudas Deshmukh Age 40 years, Occ-Agril. & Business R/o Madhav Baug, Parali-V District Beed. 3] The Asstt.Charity Commissioner, Beed, Dist.Beed. 2 4] The Joint Charity Commissioner, Latur, Dist.Latur. 5] The State of Maharashtra Through its Secretary, General Administration Department, Mantralaya, Mumbai. .. RESPONDENTS. .... Shri A.N.Nagargoje,Adv.for petitioners. Shri S.V.Chandole,Adv.for 1& 2. Shri K.M.Suryawanshi,AGP. for Respondents 3 to 5. .... WRIT PETITION NO.1090/2009 1] Bhanudas S/o Madhavrao Deshmukh Age 72 years, Occ-Agri & Business R/o Madhav Bagh, Parali Vaijinath Taluka Parali, Dist.Beed 2] Gopalkrishna S/o Bhanudas Deshmukh Age 40 years, Occ-Agri & Business R/o As above. PETITIONERS [ORIG.APPELLANTS] VERSUS 1] Rajesaheb S/o Narharrao Deshmukh, Since deceased 2] Amar S/o Rajesaheb Deshmukh Age 26 years, Occ-Agril R/o Ganesh Par, Parali Vaijnath 3 Dist.Beed. 3] Anant S/o Purushottamrao Deshmukh Age 32 years, Occ-Agril R/o Deshmukh Galli, Parali Vaijnath Ta. Parali, Dist.Beed. 4] Rajesh @ Jaywant Vithalrao Deshmukh Age 38 years, Occ-Agril R/o Near Krishna Talkies, Parali Tq. Parali, Dist.Beed 5] The Joint Charity Commissioner, Latur 6] The Assistant Charity Commissioner, Beed. 7] The State of Maharashtra. .. RESPONDENTS. .... Shri S.V.Chandole,Adv. for petitioners. Shri A.N.Nagargoje,Adv.for Respondents 1 to 4. Shri K.M.Suryawanshi,AGP for Respondents 5 to 7. .... CORAM : R.K.DESHPANDE,J. DATE : 2/8/2010. ORAL JUDGMENT: 1] Both these Writ Petitions challenge the same order dated 15/12/2008 passed by the learned Ad-hoc District Judge- 4 I,Ambajogai in Miscellaneous Civil Application No.84/08 below Exh.5. By this order, the learned District Judge has suspended the scheme framed on 9/3/2006 and a change report vide Enquiry No.462/06 pending the decision of Appeal. A further direction is given, appointing 3 persons working as Secretary, President and Treasurer of the trust. They are directed to manage the affairs of the trust. 2] Notice in Writ Petition No.560/09 was issued on 3/2/2009, whereas, in Writ Petition No.1090/09, notices are not issued. In Writ Petition No.560/09 Shri Chandole, the learned counsel appears for respondents 1 and 2, whereas Shri K.M.Suryawanshi, the learned A.G.P. appears for respondents 3 to 5. In Writ Petition No.1090/09 Shri Nagargoje, the learned counsel appears for respondents 1 to 4, whereas, Shri K.M.Surywanshi, the learned A.G.P. appears for respondents 5 to 7. The learned counsels for the parties submit that both these Petitions can be disposed of at the stage of admission. Hence, Rule. Rule made returnable forthwith. By consent of learned counsels for the parties, Petitions are heard finally. The factual position not being disputed is as under : 3] Initially, there were 12 members of the trust, out of which 8 expired and 4 remained. Out of these 4 members, also 2 were expired and only 2 persons remained to be the members 5 of the trust. In view of this, the Assistant Charity Commissioner framed scheme under Section 50A of the Bombay Public Trust Act by his order dated 9/3/06. In that scheme, the first trustees were appointed and they were directed to hold elections. Accordingly, on 30/3/2006, the elections were held and the change report vide Enquiry No.462/06 was submitted on 31/3/2006. 4] Against the order framing the scheme dated 9/3/2006, an Appeal No.22/06 was preferred before the District Judge under Section 72 of the Bombay Public Trust Act. It was dismissed on 15/12/2007. This order was further carried in Second Appeal No.207/08 before this Court. The said Second Appeal has been dismissed on 3/3/09. The learned counsel for the parties inform that Special Leave Petition has been preferred against this judgment before the Apex Court, which is pending. 5] The change report vide Enquiry No.462/06 was accepted by the Assistant Charity Commissioner by his order dated 15/5/08. This was the subject matter of challenge in Appeal before the Joint Charity Commissioner by filing Appeal No. 38/08 under Section 70 of the Bombay Public Trust Act. The same is dismissed on 3/10/2008. The application under Section 72 of the Bombay Public Trust Act is preferred before the District Judge at Ambajogai. It is registered as Miscellaneous Trust Application No.84/08. The same is 6 pending for adjudication. In the said application, an application Exh.5 was filed by the respondents 1 and 2 in Writ Petition No. 560/09, claiming the reliefs as under : “Stay petition may kindly be allowed and Appeal No.38/2008 may kindly be stayed tillthe final disposal of the main appeal of the applicants moreover the order & judgment in Inquiry No.462/2006 dated 15/5/2008 be kept in suspension till the final disposal of the second appeal of the Hon’ble High Court, Bench at Aurangabad bearing appeal No. 207/2008 and oblige.” 6] This application Exh.5 has been decided by the learned Ad-hoc District Judge-I Ambajogai by his order dated 15/12/08. The operative part of which is reproduced below : “[1] Implementation of the new Scheme and result of Inquiry No.462/06 are suspended till the decision of the Appeal. [2] Till decision of the Appeal following persons are directed to work for day to day work of the Trust. [3] Petitioner Bhanudas Madhavrao Deshmukh is directed to look after the work as 7 Secretary of the Trust as per previous Scheme. [4] Amar Rajesaheb Deshmukh is directed to do all work, which was done by President of Trust under previous scheme. [5] Anant Purushottam Deshmukh is directed to work as Treasure of the Trust & further Bank Account of the Trust should be maintained and operated by Gopalkrishna Bhanudas Deshmukh and Anant Purushottam Deshmukh jointly till disposal of application.” 7] The aforesaid order dated 15/12/08 is the subject matter of challenge in both these Writ Petitions. Writ Petition No. 560/09 challenges the entire order. However, Writ Petition 1090/09 challenges the directions contained in paragraphs no.2 to 5 of the operative part of the order, which is reproduced above. Thus the petitioners and the respondents no.1 and 2 in Writ Petition No.560/09 both are aggrieved by the same order. 8] Both the learned counsels for the parties agree that the order dated 15/5/2008 accepting change report no.462/06 can be given effect to, pending the decision of the Misc.Civil Application No.84/08 filed under Section 72 of the Bombay Public Trust Act before the District Judge. The only ground on 8 which the learned District Judge has passed the impugned order below Exh.5 is that the very foundation of the scheme itself is the subject matter of Second Appeal before this Court. Now the Second Appeal has been dismissed and hence the order on that count cannot be sustained. Since the learned counsels for the parties agree that the order dated 15/5/2008 passed in change report vide Enquiry no.462/06 can be continued pending decision of Misc.Civil Application No.84/08 and subject to the decision of Special Leave Petition pending before the Apex Court, the following order is passed : [i] In the result, both these Writ Petitions are allowed. The order dated 15/12/2008 passed below Exh.5 in Misc,.Civil Application No.84/08 is hereby quashed and set aside. [ii] The order dated 15/5/08 accepting change report No.462/06 shall be given effect to pending the decision of Misc.Civil Application No.84/08 and subject to the decision of Special Leave Petition pending before the Apex Court. [iii] Rule is made absolute in the aforesaid terms. No order as to costs. [R. K. DESHPANDE, J.] umg/wp560-09