wp8769.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.8769 OF 2010 1. Sambhaji Raje Sadashiv Dahatonde, age 40 years, occu. Social Work, r/o Chanda, Tq. Newasa, District Ahmednagar. 2. Sayaram s/o Tukaram Bankar, age 42 years, occu. Agril. & Business, r/o Shani Shignapur, Tq. Newasa, District Ahmednagar. ...PETITIONERS. VERSUS 1. The State of Maharashtra. Through Ministry of Law and Judiciary, Mantralaya, Mumbai-32. 2. The Charity Commissioner, Maharashtra State, Mumbai. 3. The Joint Charity Commissioner, Pune Division, Pune. 4. The Assistant Charity Commissioner, Ahmednagar. 5. Shri Shaneshwar Devsthan, Shignapur, Tq. Newasa, District Ahmednagar, through its President. wp8769.10 2 6. Shri Dadasaheb Dhondiram Darandale, age 40 years, occu. Agri., 7. Shri Bapusaheb Baliram Dane, age 37 years, occu. Agri., 8. Shri Babasaheb Natha Darandale, age 42 years, occu. Agri., 9. Bapusaheb Shankar Shete, age 51 years, occu. Agri., 10. Suresh Baburao Bankar, age 47 years, occu. Agri., 11. Shivaji Annasaheb Darandale, age 45 years, occu. Agri., 12. Dagadu Kisan Shete, age 58 years, occu. Agri., 13. Nanasaheb Vitthal Bankar, age 54 years, occu. Agri., 14. Nivrutti Chandrabhan Shete, age 60 years, occu. Agri., 15. Raosaheb @ Sahebrao Tukaram Darandale, age 62 years, occu. Agri., Resp.Nos.6 to 15 r/o Shignapur, Tq. Newasa, District Ahmednagar. ...RESPONDENTS. ... Shri A.P. Bhandari, Advocate holding for, Shri R.M. Pardeshi, Advocate for petitioners. Smt. V.A. Shinde, A.G.P. for R.Nos.1 to 4. Shri V.D. Sapkal, Advocate for R.Nos.5 to 15. ... wp8769.10 3 CORAM: S.S. SHINDE,J. RESERVED ON: 23rd DECEMBER, 2010. PRONOUNCED ON : 5th JANUARY, 2011. JUDGMENT: 1. Heard learned Counsel for the parties. 2. Rule. Rule is made returnable forthwith and by consent of parties, taken up for hearing. 3. The petitioners herein challenge the advertisement dated 15th September, 2010 published in Daily Kesari by the respondent No.5 trust for recruitment of certain employees. The petitioners also pray for directions restraining respondents No.6 to 15 from taking any policy decision, including recruitment over the Respondent No.5 trust. They also seek directions to respondent No.4 to conclude the Inquiry No. 28/2010 expeditiously, as also directions to respondents No.3 and 4 to take over the management of the trust till next body of trustees is selected. Besides the aforesaid main wp8769.10 4 prayers, the petitioners have made other prayers also. 4. It is the case of the petitioners that the respondent No.5 trust is registered in the year, 1963 and the scheme of the trust has been prepared and the same has been approved in the year, 1990. As per the scheme of the trust, the trustees are selected by the Assistant Charity Commissioner, and the body of trustees has a term of five years. In the year, 2005, the process for selection of trustees was initiated and respondents 6 to 15 have been appointed as trustees of the trust. The tenure of respondents 6 to 15 is due to lapse in the month of December, 2010. It is the case of the petitioners that during the tenure of respondents 6 to 15, various illegalities have been committed such as theft from donation box etc. Though several news items were published in the newspapers and even the matter had reached legislative assembly, yet the wp8769.10 5 said employee who was involved in theft has been retained by the respondents for the reasons best known to them. Several illegalities have been committed in last five years by the respondents 6 to 15 while working as trustees. During the tenure of respondents 6 to 15, recruitment process has been initiated and various relatives of the trustees have been appointed. The process of establishment of accommodation at Newasa for the devotees has been initiated and no permission has been obtained from respondents 2 to 4, no steps have been taken for establishment of the same. The petitioners have also averred in the petition that the respondents 6 to 15 are involved in various illegalities and funds of the trust are not being utilized for fulfillment of the objectives of the trust. 5. It is the case of the petitioners that though the directions were issued to complete the inquiry prior to 30th April, 2010 by the Assistant wp8769.10 6 Charity Commissioner, the inquiry has not been completed. It is further case of the petitioners that respondents 6 to 15 have published an advertisement in Daily Kesari dated 15th September, 2010 for recruitment on certain posts and as per the said advertisement, the last date for submission of applications for various posts was 22nd September, 2010. It is the case of the petitioners that the petitioner No.1 immediately made an application to the Assistant Charity Commissioner, thereby bringing to the notice of the said authority that the recruitment process initiated by the respondents 6 to 15 should be stopped and respondents 6 to 15 may be restrained from taking any policy decision, pending inquiry. It is further case of the petitioners that the Assistant Charity Commissioner, instead of restraining the respondents 6 to 15 from taking any policy decision, simply called explanation from the President of the trust by issuing communication dated 15th September, 2010. 8. Since the Assistant Charity Commissioner has wp8769.10 7 not passed appropriate order restraining the respondents 6 to 15 from taking policy decision including recruitment process, this writ petition is filed by the petitioners. 7. According to the petitioners, they are the persons having interest in the affairs of Shri Shaneshwar Devsthan trust as the petitioners are residents of the locality where the temple is situated and the petitioners use to offer prayers in the said temple. The petitioner No.2 is resident of Shani Shignapur. Both the petitioners are beneficiaries of the temple and, therefore, they are interested in clean governance of the affairs of the said trust. 8. The learned Counsel for the petitioners submitted that the inquiry initiated in pursuance to the complaints filed by the petitioners is still pending with the respondent No.4, yet, during the pendency of said inquiry, the respondents No.6 to 15 have initiated the process of recruitment and no steps are taken by the wp8769.10 8 respondent no.4 to restrain the said recruitment process. He submits that the term of respondents 6 to 15 is due to lapse in the month of December, 2010, yet, with obvious motives, the recruitment process has been initiated. The inquiry proceedings filed by the petitioners have been registered as Inquiry No.28/2010. Yet, during the pendency of inquiry, there is no prohibitory order passed. The learned Counsel for the petitioners submitted that considering the nature of allegations, respondent No.4 ought to have completed the inquiry expeditiously and it is therefore, necessary to issue appropriate directions for speedy disposal of the inquiry. He further submitted that the desperation shown by the respondents 6 to 15 shows that there is obvious intentions to misuse the powers and therefore, he prays for directions to respondents 3 and 4 to take over the management of the said trust. The learned Counsel for the petitioners has placed on record the Notes of Arguments on behalf wp8769.10 9 of the petitioners, stating therein the factual matrix of the case, legal submissions etc. He submitted that as per the provisions of Section 41A of the Bombay Public Trust Act, the Charity Commissioner can issue directions to ensure that the trust is properly administered. The directions can also be given for protection of the property of trust. He also submitted that as per the scheme of the trust, the Assistant Charity Commissioner, is the appointing authority of the trustees and the said authority can also remove the trustees if the case for removal is made out in view of Clause 9(6) of the Constitution of the Trust. Apart from that the appointing authority has the authority to remove the trustees. The Assistant Charity Commissioner, has also issued publication for appointment of new trustees, as the tenure of the respondents No.6 to 15 has elapsed. While arguing about the locus of the petitioners, he submitted that petitioner No.1 is the original complainant, who offers prayer in wp8769.10 10 the temple. Petitioner No.2 is resident of Shingnapur. Both the petitioners are persons having interest in the affairs of the trust, as per section 2(10) of the Bombay Public Trust Act. He relied on the judgment in the case of Subhash Trambakrao Inamdar Vs. Pandurang Savner, reported in 2004(Supp) BCR 502 in support of his submission that petitioners are persons having interest in the affairs of the trust. Relying on the written submissions and the grounds raised in the petition, the learned Counsel for petitioners prayed that the petition may be allowed. He also tried to distinguish the judgments cited on behalf of the respondents in the light of facts of the case at hand. 9. On the other hand, the learned Counsel for the respondents 5 to 15 submitted that the writ petition is not maintainable against the Public Charitable Trust because it is neither State not its instrumentality. The trust is not created under Statute. It is not governed by any Rules. It is registered under the Public Trust Act and wp8769.10 11 governed by the Scheme framed by the Charity Commissioner. He further submitted that the petitioners have no locus because they are not personally aggrieved. The person who is aggrieved can be only participant in the selection process. He further submitted that the petition is not a public interest litigation as the Division Bench has already passed order saying that the matter lies to Single Judge. In case of Hari Bansh Lal Vs. Sahodar Prasad Mahto and others, reported in 2010(6) ALL MR 447 (S.C.), it has been held that except in a case for a writ of `Quo Warranto’, PIL in a service matter is not maintainable. It is further submitted on behalf of the respondents that no injunction can be granted against the trustees till they are found guilty. The learned Counsel for respondents 5 to 15 submitted that the petitioners have not mentioned as to under what provisions they approached the Assistant Charity Commissioner seeking the wp8769.10 12 relief. In absence of this, there is no quasi judicial order passed by the authority to enable this Court to consider the matter whether order is correct or not. No such order is under challenge before this Court as required under Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules. The allegations made in respect of relatives of the trustees working in the trust cannot be considered because they are not made parties to the petition and no relief is sought against them challenging their appointment. The learned Counsel for respondents 5 to 15 further submitted that the writ petition is filed with malafide intention. All the complaints made by the petitioners are published in newspapers and those are used as annexure to the petition. In such circumstances, the present petition is abuse of process of law. He, therefore, prayed for dismissal of the writ petition with costs. The learned Counsel for respondents 5 to 15 argued that the petitioners have no locus standi wp8769.10 13 to challenge the advertisement published by the respondent No.5. The petition can be filed by two categories of persons – (1) aggrieved party; (2) public interest petition. In the present case, the petitioners are not aggrieved parties because only the non appointee can assail the legality of the appointment procedure in view of the decision in B.Srinivasa Reddy vs. Karnataka Urban Water Supply Drainage Board Employees Association, reported in 2006(11) SCC 731(II). The other category of petition is a public interest petition. So far as this aspect is concerned, the issue is settled by the Apex Court in case of Dr. Duryodhan Sahu and others Vs. Jitendra Kumar Mishra and others reported in (1998)7 SCC 273, wherein the Supreme Court held that if public interest litigations at the instance of strangers are allowed to be entertained by the Administrative Tribunal, the very object of speedy disposal of service matters would get defeated. It is further case of the respondents that as per the Scheme Clause 8 wp8769.10 14 clearly provides that the person who can be appointed as a trustee should be from Shanisingnapur village. The petitioner No.1 is from village Chanda. He can never be appointed as a trustee. The petitioners’ case that several relatives of the trustees are appointed at Respondent No.5 trust cannot be a ground to seek injunction because there is no challenge to their appointment in the present petition or in different proceedings before this Court, and therefore, such allegations cannot be entertained. According to the learned Counsel for respondents 5 to 15, the inquiry was conducted in respect of the allegations and the report is placed at page 68 of the compilation and said report clearly shows that there is no substance in the allegation of the petitioners and all allegations are found to be incorrect. It is further submitted the petitioners have not stated as to under which provision they have applied to the Assistant Charity Commissioner for taking action against the respondents 5 to 15. The advertisement has been issued by the Manager, wp8769.10 15 Executive Officer and the President of the trust. The Manager and the Executive Officer are not trustees appointed by the Assistant Charity Commissioner According to the learned Counsel for respondents 5 to 15, the writ petition is not maintainable. In support of his contention, the learned Counsel for respondents placed reliance on the judgment of the Supreme Court in the case of Girjesh Shrivastava & Ors. Vs. State of M.P. & Ors., reported in 2010(6) ALL MR 930. Relying on the written arguments, the learned Counsel for the respondents 5 to 15 would submit that the writ petition is devoid of any merits and the same deserves to be dismissed. 10. The learned A.G.P. appearing for respondents No.1 to 4 submitted that the appropriate steps are being taken for completing the inquiry No. 28/2010. 11. I have given due consideration to the rival submissions advanced on behalf of the petitioners and respondents. The preliminary objection is wp8769.10 16 raised by the learned Counsel for the respondents 5 to 15 that in absence of any order passed by the quasi judicial authority, the learned Single Bench of this Court cannot entertain this writ petition. As per the provisions of Rule 18(3) of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 (for short, the said Rules), if any order is passed by the quasi judicial authority then only this Court can entertain the writ petition. At this juncture, it would be appropriate to reproduce the Rule 18(3) of Chapter XVII of the said Rules: “18. Single Judge’s powers to finally dispose of applications under Article 226 or 227.- Notwithstanding anything contained in Rules 1, 4 and 17 of this Chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of -- wp8769.10 17 (1) .... (2) .... (3) the decrees or the orders passed by any Subordinate Court or by any quasi Judicial Authority in any suit or proceeding (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court and orders passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the Administrative Tribunals Act, 1985; and the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002.” 12. Upon perusal of the Sub Rule (3) of Rule 18 of Chapter XVII of the said Rules, it appears that the decrees or orders passed by any subordinate Courts or by any quasi judicial authority in any suit or proceedings with certain exclusions, can be the subject matter of challenge before the Single Bench of this Court. This writ petition was placed for hearing before the learned Division Bench on 28th wp8769.10 18 September, 2010, when the learned Division Bench passed the following order: “1) Though the petition is couched in terms that it seeks writ of mandamus, in effect, it would reveal that the petitioner challenges order dated 15/9/2010 passed by learned Assistant Charity Commissioner, Ahmednagar on an application filed by the present petitioner which is annexed at Exh.I. Perusal of the said application reveals that the directions which are in the nature of the powers of the Assistant Charity Commissioner referable to under Section 41-A of the Bombay Public Trust Act were sought for. 2) In that view of the matter, it would be clear that the jurisdiction which was exercised by learned Assistant Charity Commissioner was exercised in a quasi judicial capacity, as such, order impugned would be referable to Clause 3 Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960. Petition would therefore, lie before learned Single Judge of this Court.” 13. The Division Bench has observed in its order dated 28th September, 2010 that the petitioners wp8769.10 19 challenge the order dated 15th September, 2010 passed by the learned Assistant Charity Commissioner, Ahmednagar on an application filed by the petitioners annexed at Exh.I and, therefore, the petition will lie before learned Single Judge of this Court. Therefore, in view of the order of the Division Bench dated 28th September, 2010, and being Single Bench of this Court and to maintain judicial discipline, there is no option but to adjudicate this matter on merits. The another reason to entertain this writ petition is that the Assistant Charity Commissioner, Ahmednagar has failed to exercise the jurisdiction vested in him. Therefore, in the light of the order passed by the Division Bench dated 28th September, 2010, and in the light of what is stated herein above, the preliminary objection raised by the learned Counsel for the respondents 5 to 15 about the maintainability of this petition before the Single Bench is required to be rejected. wp8769.10 20 14. The main reason for filing this petition appears to be that the petitioner No.1 herein addressed a letter to the Assistant Charity Commissioner, Ahmednagar (Exh.I to the petition), in which the petitioner No.1 has raised grievance that in spite of specific directions of re- inquiry i.e. Inquiry No.28/2010, the said inquiry has not been completed, though the term of the trustees - respondents 6 to 15 will come to an end by December, 2010. The main grievance was raised in the said letter that respondents 6 to 15 are likely to take major policy decisions, which would likely to affect interest of respondent No.5 trust and the devotees. Therefore, the petitioners should be provided complete information regarding the proceedings of meeting dated 30th September, 2010. The respondents 6 to 15 should be restrained from carrying on recruitment process for appointment on various posts as per the advertisement dated 15.9.2010. If at all, there is exigency of recruiting certain persons, in that case, unless specific prior permission is taken from the wp8769.10 21 Assistant Charity Commissioner and the State Government, respondents 6 to 15 should not be allowed to carry out recruitment process. The respondents 6 to 15 may be restrained from taking any policy decision without prior permission of the Assistant Charity Commissioner or State Government. If any work is to be carried out, estimated to Rs.50,000/- or above, the respondents 6 to 15 may be compelled to take prior permission from respondents No.1 to 4. The petitioners’ contention is that the Assistant Charity Commissioner, without issuing directions restraining the respondents 6 to 15, only called upon the President of the trust to submit explanation by letter dated 15.9.2010. Hence, the petitioners have approached this Court with apprehension that the respondents 6 to 15 would continue to take policy decisions and will carry out recruitment process, which may be adverse to the interest of the trust and therefore, prayed to restrain the respondents 6 to 15 from taking any policy decision and making recruitments for various posts as advertised in the advertisement wp8769.10 22 dated 15.9.2010. 15. The apprehension of the petitioners is that the term of the respondents 6 to 15 comes to an end by December, 2010, therefore, they are in hurry to take major decisions which are likely to adversely affect interest of the trust as well as devotees. According to the petitioners, the term of respondents 6 to 15 is only till end of December, 2010. Upon appreciating aforesaid contentions of the petitioners, I am of the opinion that since term of five years of the trustees has come to an end by now and by way of ad interim relief granted by this Court on 1.10.2010, the respondents- trustees were directed not to issue order of appointment in pursuance of the advertisement dated 15th September, 2010, there is no need to issue any further directions as prayed by the petitioners, restraining the Respondents No.5 to 15 from taking any policy decision. Admittedly, the term of the Respondents No.6 to wp8769.10 23 15 was for five years. 16. So far as another contention of the petitioners about the completion of Inquiry No. 28/2010 is concerned, without entering into the merits of the matter, the Assistant Charity Commissioner, Ahmednagar can be directed to inquire into the matter and take appropriate decision to complete Inquiry No.28/2010 within a stipulated period. However, as stated earlier, the said direction can be given without expressing any opinion on the merits of the inquiry pending before concerned authority. The parties will have to put forth their case before the appropriate authority, which is appointed to conduct and complete Inquiry No.28/2010. Even otherwise, the Assistant Charity Commissioner, suo motu can make inquiry of any trust. Therefore, by giving mere direction to complete Inquiry No.28/2010, no party can have grievance as long as the points are left open on merits to be agitated before the concerned wp8769.10 24 authority conducting the inquiry No.28/2010. 17. So far as the main grievance of the petitioners that the advertisement dated 15.9.2010 issued by the respondents – trustees for recruitment on certain posts is concerned, I am of the opinion that, this Court cannot grant any injunction or prohibit the respondents 6 to 15 from taking further action on the advertisement dated 15.9.2010. The petitioners have made endeavour to show that the relatives of the trustees are appointed as employees in past, and therefore, the respondents 6 to 15 are required to be restrained from carrying out the recruitment process. This point raised by the petitioners is squarely answered by the authoritative pronouncements of the Apex Court in case of Girjesh Shrivastava (supra). It is not in dispute that the earlier selection process is not subject matter of this writ petition or the same has not been challenged by the petitioners. It is also not in dispute that both petitioners are not aggrieved parties by virtue of their non wp8769.10 25 selection as employee of the trust or they have filed applications in pursuant to the advertisement dated 15.9.2010 for appointment on any post mentioned in said advertisement. It is relevant at this juncture to mention that this Court by order dated 1st October, 2010 directed the Assistant Charity Commissioner, Ahmednagar to ensure that no appointments are made by the Respondents No.6 to 15 - trustees. By way of ad interim relief, respondents – trustees were directed not to issue orders of appointment in pursuant to the advertisement issued on 15.9.2010 until next date. Therefore, by virtue of interim order, the respondents 6 to 15 were restrained from issuing any appointment orders. The Hon’ble Apex Court in case of Dr. Duryodhan Sahu (supra), held that in order to bring the matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order wp8769.10 26 pertaining to any matter within the jurisdiction of the Tribunal. A private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service