W.P. 3717/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3717/2010 Jivan s/o Nivruttirao Karde and another Vs. Joint Charity Commissioner, Latur Region, Latur and others Mr. A.P. Bhandari h/f Mr. Anupkumar Pardeshi, for the petitioners. Mr. Smt. S.D. Shelke, A.G.P. for respondent Nos.1. Mr. V.J. Dixit, Sr. counsel I/by Mr. R. C. Patil, for respondents No.2, 2-A to 2K. CORAM : A.V. NIRGUDE, J. DATED : 7th April, 2011. ORAL ORDER: 1. This writ petition is filed under Articles No.226 and 227 of the Constitution of India, challenging the order dated 08/02/2010 passed by the learned Jt. Charity Commissioner, Latur Region, Latur, rejecting the petitioner’s application filed under section 41D of the Bombay Public Trust Act, 1950 (for short B.P.T. Act). 2 The petitioners are advocates practicing at Latur and had filed an application under section 41D of the B.P.T. Act for initiating action against trustees of the Trust by name Vasundhara Paryavaranvadi Bahu uddeshiya Sevabhavi Sanstha Latur, which is Public Trust and a society registered under Societies Registration Act. The Society / Public Trust was found with lots of laudable objects, one of which is management of solid waste etc.. The Trust admittedly started business of management of solid waste. They secured a valuable contract from the Municipal Council, Latur and this business required the Trust to acquire lots of vehicles and employ employees. I am told that at the moment, the Trust has about ten vehicles of their own and about 10 to 15 employees. The Trust engages 40 other vehicles on rental basis and have engaged labourers from independent sources. W.P. 3717/2010 2 The petitioners moved the application under section 41D on following grounds. The Trust avoided to keep accounts, the Trust avoided to get the accounts audited, the Trust did not prepare a budget, the Trust did not file income tax return, the Trust took loan for buying vehicles without obtaining permission of the Charity Commissioner, the Trust could not have started business of waste management, which is apparently against the objects of the Trust. The Trust engaged number of labourers and has committed several illegalities. The Trust did not have permanent account number and PAN card for quite some time though the commercial activities had already begun. The petitioners blame the Trustees for committing these and other several illegalities and sought action against under section 41D. Section 41D reads as under. 41 D. Suspension, removal and dismissal of trustees. (1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 41Bor suo motu 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) willfully 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 neglects his duty or commits any malfeasance or mis- feasance, or breach of trust in respect of the trust; (d) misappropriates or deals improperly with the properties of the trust of which he is a trustee;or (e) accepts any position in relation to the trust which is inconsistent with his position as a trustee; W.P. 3717/2010 3 (f) is convicted of an offence involving moral turpitude. (2) when the Charity Commissioner proposes to take action under subsection (1), he shall frame charges against the trustee or the person against whom action is proposed to be taken and give him an opportunity of meeting such charges, of testing the evidence adduced against him, an of adducing evidence in his favour. The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge, with the reasons therefor. (3) Pending disposal of the charges framed against a trustee, the Charity Commissioner may place the trustee under suspension. (4) Where the Charity Commissioner has made an order suspending, removing or dismissing any trustee and such trustee is the sole trustee, or where there are more than one trustee and the remaining trustees, according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the functions of the trust, and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust. (5) A trustee, aggrieved by an order made under subsection(1) may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order. (6)An appeal shall lie to the High Court against the decision of the Court under sub- section (5) as if such decision was a decree from which an appeal ordinary lies. (7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final. 3. Having regard to the provisions and the allegations made against the Trust, the learned Joint Charity Commissioner, Latur Region, Latur did not think it necessary to initiate action and dismissed the application. After hearing the submissions of the learned advocate appearing for the petitioner, I too hold same opinion about maintainability of the application. The application deserves to be dismissed because the allegations made against the Trustees are not as serious as an action under section 41(D), should be initiated W.P. 3717/2010 4 against them. It appears that the Trust was established recently and soon after its establishment, the commercial activity is undertaken. This appears to be the major activity of the Trust. I am told that several other activities are also undertaken by the Trust such as activities regarding observations of environment etc.. The only objection that looks little relevant is in respect of the alleged loans taken by the Trust without obtaining permission of the Charity Commissioner under section 36(A) of the B.P.T. Act. But I am told that the loans which were taken in the year 2005, were taken prior to the registration of the Trust. I am also told that the loans are already repaid and at present there is no outstanding loan against the Trust. I am not therefore, inclined to interfere in the impugned order. 4 As regards the objection raised by the petitioners that the Trust could not have started the business of waste management in the garb of the objections of the Trust. I am not inclined to express my opinion on the same because it would not come within the ambit of section 41D of B.P.T. Act but this objection can be pursued elsewhere as per law. ORDER Writ petition stands dismissed. [A.V. NIRGUDE, J.] ts k/2011/April7/wp3717.10/ok