1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4971 OF 2009 1) Shri Bankat Swami Shikshan Sanstha, Khadki Ghat, Tq. & District-Beed, Through Dr. Laxman Kondiba Bhosale, Age-72 years, Occu: President, R/o-At present Bhosale Hospital, Main Road, Paithan, Dist-Aurangabad, 2) Raosaheb s/o Haribhau Bhosale, Age-72 years, Occu:Secretary, Shri Bankat Swami Shikshan Sanstha, Khadki Ghat, Tq. & Dist-Beed, 3) Kundlik s/o Rambhau Bhosale, Age-70 years, Occu:Agri., R/o-Pargaon (Gh.), Tq-Patoda, Dist-Beed, 4) Ashok s/o Rambhau Bhosale, Age-Major, Occu: Agri., R/o-Shradha Lodge, In front of S.T. Stand, Latur, 5) Baburao s/o Kondiba Bhosale, Age-80 years, Occu:Agri., R/o-Khadkighat, Tq. & Dist-Beed, 6) Ramdas s/o Bhaurao Khose, Age-50 years, Occu:Agri., R/o-Tandalwadi (Ghat), Post-Khadki Ghat, Tq. & Dist-Beed. ...PETITIONERS. VERSUS Machindra s/o Narayan Gharat, Age-58 years, Occu:Agri., R/o-Sakhre Borgaon, Tq. & Dist-Beed. ...RESPONDENTS. 2 ... Mr.S.B. Talekar Advocate for Petitioners. Mr.M.V. Deshpande Advocate i/b. Mr. R.V. Deshmukh Advoate for Respondent ... CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 25TH AUGUST, 2009. JUDGMENT PRONOUNCED ON: 4TH SEPTEMBER, 2009. JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 2. Heard learned counsel for the Petitioners and learned counsel for Respondent. By this Petition under Article 226 and 227 of the Constitution of India the Petitioners are challenging the order dated 2nd July, 2009 below Exhibit 1 in Application No.7 of 2009 passed by the Joint Charity Commissioner, Latur Region, Latur on the ground that the allegations which did not find place in the Application, were not only enquired into but finding was recorded in respect of the allegations for which there was no foundation laid in the applications filed under Section 41-D of the Bombay 3 Public Trusts Act, 1950. A few facts of the present case are as under: . The Respondent - original applicant filed Enquiry Application No.7 of 2009 in the Court of Joint Charity Commissioner, Latur Region, Latur under Section 41-D of the Bombay Public Trusts Act, 1950 for removing the Petitioners from Trusteeship of the Trust namely Shri Bankat Swami Shikshan Sanstha, Khadki Ghat, Tq. & Dist- Beed on the ground that the Petitioners failed to submit audited accounts of the Trust since 1997 and on other grounds. In the said Application, the Petitioners filed their reply dated 29th May, 2009 and denied all the allegations. It is the case of the Petitioners that they started looking after the administration of the Trust since September, 2000. From the year 1994 to August, 2000 one Pravin Bhimrao Bhosale was the Secretary and Dr. L.K. Bhosale was the President. As the previous body failed and neglected to file audited reports since 1994 to 2000, the Petitioners cannot be held responsible for the same. The Petitioners further stated in their reply that, as the earlier body failed and neglected to handover charge to them, they could not comply with the 4 statutory provisions of the Bombay Public Trusts Act, 1950. It is the case of the Petitioners that from time to time they called upon the previous body as well as requested the Authority for custody of records and proceedings of the Trust prior to 2000. Inspite of several requests, previous body failed and neglected to handover the custody of the records and proceedings of Trust and therefore they cannot be held responsible for non filing of statutory audited reports and for maintaining books of accounts. After hearing both sides, the Joint Charity Commissioner, Latur Region, Latur passed order below Exhibit 1 in Application No.7 of 2009 and framed charges against the Petitioners which are reproduced here under: "(a) The Petitioners defaulted in submission of accounts, returns and audited reports of the Trust for the period 31st March, 2000 to 31st March, 2008, (b) The Petitioners did not maintain register of movable and immovable property of the Trust, (c) The Petitioners started construction of trust building without passing resolution of the working committee, 5 (d) The Petitioners borrowed loan on behalf of the Trust without permission of the Charity Commissioner." 3. Learned counsel for the Petitioners - original Respondents submitted that the Joint Charity Commissioner, Latur Region, Latur ought to have appreciated that the allegations which did not find place in the Application were not only enquired into but findings were recorded in respect of the allegations for which there was no foundation laid in the Application filed under Section 41-D of the said Act. He further submitted that the Authority failed to appreciate that there was no allegation that the accounts were not submitted on time. Similarly, there were no allegations that the expenditure incurred on the construction was not supported by the Resolution. Similarly there was no allegation that the transaction of taking loan and refunding the loan were done in cash. For want of these allegations in Respondent's Application under Section 41D of the said Act, the order passed by the Joint Charity Commissioner, Latur Region, Latur is against justice, equity and good conscience and the same is liable to be set aside. Learned counsel for the Petitioner further submitted that for want of records 6 and proceedings of the Trust, they could not take immediate steps for filing audited reports. These facts were not considered by the Authority and passed impugned order dated 2nd July, 2009. Learned counsel for the Petitioners further submitted that in view of Section 33 of the Act, if the audited accounts are not filed within particular time, the Charity Commissioner have power to appoint a special auditor for auditing the books of accounts. Same was not done in the present case by the office of the Charity Commissioner and therefore the action against the Petitioners under Section 41-D of the said Act is not maintainable. He further pointed out that the Authority specifically held in Para 4 of the order dated 2nd July, 2009 that charges of misappropriation of money of the Trust cannot be framed against the Petitioners. Considering these facts, learned counsel for the Petitioners submitted that the impugned order dated 2nd July, 2009 is liable to be set aside. 4. On the other hand learned counsel for the Respondent stated that though the Petitioners were in-charge of the Trust management since September, 2000, they failed and 7 neglected to file audited reports for the period from 31st March, 2001 to 31st March, 2006. Not only that the Petitioners failed to give any cogent reason as to why the statement of accounts for the period 2001 to 2006 were not submitted by them. He further submitted that the Petitioners failed to submit the annual statement of accounts for the year 2007 and 2008 till 31st March, 2009. He submitted that it is crystal clear from the record and proceedings of the present case that the Petitioners failed to submit statement of accounts year- wise within limitation in the office of the Assistant Charity Commissioner from the date of taking over the management of the Trust in the year 2000. Not only that the Petitioners failed to maintain the register for movable and immovable properties of the Trust. Learned counsel for the Respondent supported the order dated 2nd July, 2009 passed by the Joint Charity Commissioner, Latur Region, Latur on the ground that the Authority, after considering the records of the Trust, held that the Petitioners failed to maintain accounts of the Trust, failed to maintain register of movable and immovable properties of the Trust, without obtaining prior permission from the Charity Commissioner, started 8 development of the Trust property and availed the loan in cash and repaid the same in cash. Learned counsel for the Respondent submitted that the action taken by the Joint Charity Commissioner, Latur Region, Latur was according to law and it could not be interfered with under Article 227 of the Constitution of India. 5. I have gone through the order dated 2nd July, 2009 passed by the Joint Charity Commissioner, Latur Region, Latur below Exhibit 1 in Application No. 7 of 2009. It is admitted fact that the Petitioners took over the management of the Trust since September, 2000. Thereafter they failed to file audited reports of the Trust for the period from 31st March, 2001 to 31st March, 2006. Learned counsel for the Petitioners submitted that the previous management of the Trust failed and neglected to handover the books of accounts and other registers of the Trust to them. For that purpose they had written several letters to the previous management as well as requested the office of the Charity Commissioner to issue appropriate directions to the previous management. It is submitted by the learned counsel for the Petitioner that for want of previous 9 books of accounts and other proceedings of the Trust, they could not file audited reports of the Trust in the office of the Charity Commissioner. This cannot be an excuse for non filing of the audited reports as required by law, in the office of the Charity Commissioner. Though the previous management of the Trust failed to handover the books of accounts to the Petitioners, the Petitioners failed and neglected to file audited reports of the Trust from the date, they took charge of the Trust management in September, 2000. Therefore, the Joint Charity Commissioner, Latur Region, Latur rightly held that the Petitioners failed and neglected to comply with the statutory obligations cast upon them as per the Bombay Public Trusts Act, 1950. Even the Petitioners failed to maintain the register of movable and immovable properties of the Trust since September, 2000 till 31st March, 2008. Not only that, without obtaining any prior permission from the office of the Charity Commissioner, the Petitioners constructed the Trust building. Without passing any resolution of the working committee, the Petitioners constructed the Trust building. The Petitioners also borrowed loan in cash on behalf of the Trust and paid the same in cash without permission of 10 the Charity Commissioner. All these acts committed by the Petitioners are actionable under Section 41-D of the Bombay Public Trusts Act, 1950. 6. Learned counsel for the Respondent submitted that the office of the Charity Commissioner can take action under Section 41-D of the Bombay Public Trusts Act, 1950 against the trustees either on the application on behalf of the trustee or any person interested in the Trust or on receipt of report under Section 41-D of the said Act or suo motu. In the present case, the Joint Charity Commissioner, Latur Region, Latur, took action against the Petitioners under Section 41-D of the said Act on the basis of the Respondent's application as well as considering the record of the Trust. Learned counsel for the Respondent submitted that once the Joint Charity Commissioner is satisfied that the Trustees committed breach as explained under Section 41-D of the said Act, pending the hearing and final disposal of the enquiry, he can suspend the trustees from the trusteeship of the Trust. In support of his submission, learned counsel for Respondent relied on the Judgment in the matter of Vijay K. Mehta and others vs. Charu K. Mehta and others, 11 reported in 2009 (3) Mh. L.J. Page 379. Internal Para 6 of Para 26 of this Authority reads thus: " 6. Mr.Dalvi then contended that the petitioners, who are the trustees and were holding the office at the time of the passing of the impugned order, were not served with any notice by the Joint Charity Commissioner. It was urged by the learned Counsel that the Joint Charity Commissioner was in error in passing the order without any notice to the petitioner and thereby the principles of natural justice are violated. Mr.Dalvi, therefore, contends that the interim order passed by the Joint Charity Commissioner should be set aside. It is impossible to accept the contention of the learned Counsel for more than one reason. Firstly, the Act nowhere makes a provision of issuance of a notice prior to the passing of the interim order of suspension under sub-section (3) or of the appointment of a fit person to discharge duties under sub-section (4) of section 41D of the Act. Apart from that, it must be remembered that the Joint Charity Commissioner exercised the powers of suspension only in the cases where he is satisfied that the 12 trustee or the Board of Trustees are mismanaging the affairs of the trust and causing loss to the interest of the trust. In cases of such a serious nature, if the Charity Commissioner issues notice prior to the passing of the order under sub-sections (3) or (4) of sec.41D, then obviously the trustees who are mismanaging the trust would have an opportunity to do away with the trust property and the purpose of enquiry would be defeated. In the case in hand, the allegations made against Jadhav are of such a serious nature that giving an opportunity either to Jadhav or to other trustees who are alleged to be aiding and abetting Jadhav in his acts of misfeasance would really defeat the purpose of making an order of suspension and appointing a fit person to discharge the duties. In our judgment, the Joint Charity Commissioner was justified in passing the order without issuing any notice to the petitioners. In this connection, it must also be mentioned that on behalf of the Joint Charity Commissioner, a return has been filed by Smt.Kelkar, the Superintendent in the office of the Charity Commissioner, and in the affidavit, Mrs.Kelkar specifically 13 stated that the petitioners are not the present trustees and their names do not appear in Schedule I under section 17 of the Bombay Public Trusts Act. Smt. Kelkar has specifically stated that the change report has not been made to the Charity Commissioner and as such the petitioners are not recognized as trustees. If the petitioners are not recognized as trustees, then the grievance of Mr. Dalvi that there was no notice of the order passed by the Joint Charity Commissioner loses its substance." (emphasis supplied)" 7. Learned counsel for the Respondent also relied on the Judgment in the matter of Sri Digyadarsan Rajendra Ramdassjivaru vs. The State of of Andhra Pradesh and others, reported in 1969 (1) Supreme Court Cases, Page 844. The Apex Court in that case held that if the trustees are allowed to function during the pendency of the enquiry, the entire purpose of the enquiry might be defeated. Para 8 of that Judgment, reads thus: "8. The suspension of a madadhipati, during the inquiry is a necessary and reasonable part of the procedure which has been prescribed by Section-46. If 14 he is allowed to function during the pendency of an inquiry the entire purpose of the enquiry might be defeated. The madadhipati, may, during the pendency of the inquiry, do away with the most of the evidence or temper with the books of account or otherwise commit acts of misappropriation and defalcation in respect of the properties of the Math. It is essential, therefore, in these circumstances to make a provision for suspending him till the inquiry concludes and an order is made either exonerating him or directing his removal." 8. In the present case the Joint Charity Commissioner, Latur Region, Latur by order dated 2nd July, 2009 framed charges against the Petitioners for breach of statutory provisions of the Act and during the enquiry, he suspended the Petitioners from the trusteeship of the Trust. On the basis of the documents referred and relied upon by the parties in the present case, I am of the opinion that the Joint Charity Commissioner, Latur Region, Latur considered all the documents on record and passed well reasoned order. In any case the power to be 15 exercised by the Joint Charity Commissioner under Section 41-D (3) of the Bombay Public Trust Act is a discretionary power. Assuming that there is some error here and there, that cannot be the basis to interfere with such well considered and reasoned discretionary order passed by the Joint Charity Commissioner under Article 227 of the Constitution of India. Learned counsel for the Petitioner failed to point out any irregularity in the order passed by the the Joint Charity Commissioner, Latur Region, Latur dated 2nd July, 2009. Considering these facts, I do not find any substance in the present Writ Petition and the same is dismissed with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/JULY09/wp4971.09