*1* wp.4026.11.919.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4026 OF 2011 Anjuman Tahzeebul Akhlaque and other. ..Petitioners -Versus- Dr.Mukhtarul Hasan M. Ansari and others. ..Respondents .......... Mr.M.M.Vashi, for the Petitioners. Mr.S.M.Kamble, for the Respondents. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 10th June, 2011. P.C.: 1 The Deputy Charity Commissioner, Nashik Region, Nashik passed an order on 06.05.2011, the operative part of which reads thus:- “1. Change Report No.615/2005 stands rejected. 2. Change Report No.700/2005 stands rejected. 3. In exercise of the power conferred on this authority under Section 41A of the Bombay Public Trusts Act, 1950 I hereby direct Shri Mukhtarulhasan Mehmud Ansari mentioned as Chairman in Schedule-I to enroll new members of required categories by holding meeting of executive committee within 15 days from the date of passing of this order. 4. Dr.Shafique Nisar Ahmad mentioned as trustee in Schedule-I shall co-operate Chairman Shri Mukhtarulhasan Mehmud Ansari to complete the process of enrolling members as per the constitution of the trust and after enrolling members election of new executive committee be held as per provisions of constitution. 5. The copy of this judgment be placed in C.R. No. 700/2005. 6. No order as to costs.” *2* wp.4026.11.919.sxw 2 Mr.Vashi, learned counsel appearing for the Petitioners, submits that against this order an appeal has been preferred to the Joint Charity Commissioner bearing Appeal No.39/2011. That appeal invokes the appellate power of the Charity Commissioner under the Bombay Public Trusts Act, 1950. 3 However, it is the submission of Mr.Vashi that the appeal may be maintainable insofar as the change reports and their rejection is concerned, but when incidental exercise is undertaken allegedly to invoke the powers under Section 41A of the Bombay Public Trusts Act, 1950 and the directions are given as reproduced above, then, the appeal may be incompetent and not maintainable. He points out that when the appeal was moved the Joint Charity Commissioner expressed doubt about maintainability of the said appeal insofar as directions at Sr.Nos.3 and 4. 4 Mr.Kamble, learned counsel appearing for the contesting Respondent Nos.1 and 2, on notice, submits that insofar as the direction at Sr.No.3 is concerned, same has been implemented inasmuch as new members have been enrolled. However, enrollment has been completed, but the elections are not held till date, is also the statement made by Mr.Kamble. On instructions, Mr.Kamble states that the persons whose names are mentioned in direction at Sr.No.4 will not hold the elections of new executive committee. He submits that such step will not be taken until the appeal before the Joint Charity Commissioner is heard and disposed of. However, he prays that the appeal may be disposed of expeditiously so as to avoid the statement being continued indefinitely. 5 Mr.Vashi would urge that the Joint Charity Commissioner having expressed doubt as aforesaid and in the light of the judgments of this Court, taking a view that an appeal under Section 70 is incompetent *3* wp.4026.11.919.sxw and not maintainable when the directions are issued by taking recourse to Section 41A. In my view, it is not necessary to decide any larger controversy in the light of the statement made by Mr.Kamble. Further, the Joint Charity Commissioner, in the peculiar facts of this case, is advised to dispose of the appeal on merits and in accordance with law. He may take into consideration all the submissions on maintainability, but in the peculiar facts of this case when there is an order made on change report and the argument is that while deciding the change report such directions could not have been issued as they are de hors Section 22 of the Bombay Public Trusts Act, 1950, the Joint Charity Commissioner would be better advised to follow the above course. All contentions of both sides in that behalf are kept open. The Joint Charity Commissioner to decide the appeal within a period of two months from today. 6 Needless to add that when the persons whose names are mentioned in the direction at Sr.No.4 are not going to hold elections till the disposal of the appeal, anybody claiming through them or acting at their instance or on their behalf, shall also not initiate and/or complete the process of holding the elections. 7 The petition is, accordingly, disposed of. (S.C. Dharmadhikari, J)