-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.2360 OF 2005 APPEAL NO.2360 OF 2005 APPEAL NO.2360 OF 2005 1.Purshottam Ramkrishna Patil 2.Kiran Anadro Pawar 3.Gajananrao Govindrao Hargude ...Appellants vs. 1.Ramchandra Pandurang Patil 2.Sanjay Pandurang More 3.Shripad Ramchandra Joshi 4.Omprakash Pandurang Chavan 5.Manik Baurao Patil 6.Vilas Sadashiv Thorat 7.Sau.Asha Ramchandra Patil 8.Sau.Chaya Purushottam Barge 9.Vishnu Ramchandra Patil 10.Dnyaneshwar Bapuso Patil 11.Vijay Bapuso Patil 12.Dattatray Laxman More 13.Sau.Sushila Dattatray More 14.Sau.Jayashree Prakash Patil 15.Ramchandra Ganpati Gawli 16.Vishwas Ganpati Gawli 17.Purushottam Ganpatrao Barge 18.Sarvoday Shikshan Mandal,Sangli 19.Subrao Balu Patil 20.Ashok Pandurang Shendage 21.Vitthal Ananda Patil 22.Ashok Pandurang Chavan 23.Murlidhar Nivrutti Nikam 24.Shashir anna Patil 25.Laxman Dnyandeo Chavan 26.K.B.Patil 27.The Joint Charity Commissioner Kolhapur 28.Vitthal Nemgounda Birajdar 29.Kumarpal Shantilal Shah 30.Madhavrao Maruti Patil ...Respondents Mr.Sandesh Patil i/b Mr.Shiraj Patil for the Appellants Mr.Umesh Mankapure for Respondent Nos.1,19,21,22,23, 25,26,28 to 30. CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 27, 2008 : FEBRUARY 27, 2008 : FEBRUARY 27, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel for the parties -2- were heard on the last date. The First Appeal arises out of the order passed on application under section 72 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the said Act). It is well settled position of law that though the Appeal is numbered as First Appeal, the same will be governed by the constraints of section 100 of the Code of Civil Procedure,1908. Therefore, the Appeal will lie only on the substantial questions of law. 2. With a view to appreciate the submissions of the Advocates for the parties, it will be necessary to refer to the facts of the case in brief. The present Appellants are some of the Applicants in Misc. Application No.319 of 2001. The challenge in the said Misc. Application under section 72 of the said Act was to the Judgment and order passed by the learned Joint Charity Commissioner dated 21st November 2001 passed in a Revision Application before the learned Joint Charity Commissioner for challenging the order/finding dated 17th March 2001 passed by the Assistant Charity Commissioner. 3. The dispute relates to a public trust by the name Sarvoday Shikshan Mandal, Sangli. The members of the trust had filed applications for framing a scheme of the Trust which were allowed by the learned Assistant Charity Commissioner. However, the order of the Assistant Charity Commissioner was set aside and the Assistant Charity Commissioner was directed to finalise the list of the members in accordance with law. -3- Accordingly, by passing the order dated 17th March 2001, the Assistant Charity Commissioner finalised the list of the members. By the aforesaid order dated 21st November 2001, in a Revision Application, the learned Joint Charity Commissioner by setting aside the aforesaid order of the Assistant Charity Commissioner remanded the matter to the learned Assistant Charity Commissioner. The said order of remand was challenged by filing the Misc.Application No.319 of 2001 in the District Court. It must be noted here that during the pendency of the said Revision Application in Writ Petition No.4373 of 2005, this court by order dated 13th September 2005, directed the District Court to finalise the list of voters in pending Misc.Application No.319 of 2001. By order impugned in the First Appeal, the District Court has finalised the list of the members. 4. The submission of the learned Counsel for the Appellants is that the application decided by the District Court was under section 72 of the said Act for challenging the order dated 21st November 2001 passed by the learned Joint Charity Commissioner in Revision Application No.42 of 2001. His submission is that the said application under section 72 of the said Act has not been decided on merits by the District Court in the sense that the District Court has not dealt with the challenge to the said order on merits. He submitted that the District Court could not have finalised the list of the members as what was challenged before the District Court was -4- only the order of remand passed by the learned Joint Charity Commissioner. 5. He invited my attention to the fact that an application was made by the Applicant No.2 before the District Court at Exh.88 praying for issuing a public notice in the newspaper and the said application has been rejected by the District court without assigning any proper reason. He invited my attention to the Bombay Public Trust Rules,1951 and submitted that a public notice was required to be issued by the District Court before passing an order. 6. His further submission is that the order of this court in Writ Petition No.4383 of 2005 passed on 13th September 2005 is in an altogether different proceeding and therefore the said order was not binding on the parties to the proceedings. He submitted that the said order is passed in collusion between the secretary of the Trust and the Revision Applicant before the learned Joint Charity Commissioner as is apparent on the face of the record. He, therefore, submitted that a substantial question of law arises in the Appeal. The learned Advocate for the contesting Respondents supported the impugned Judgement. 7. It must be stated here that the order dated 17th March 2001 was passed by the learned Assistant Charity Commissioner in terms of the order of this court passed in First Appeal -5- No.512 of 2000. By the said order a list of members of the Trust was finalised. By a separate order passed, an interim committee was constituted to look after day to day affairs of the trust. By his order dated 21st November 2001, the said order dated 17th March 2001 was set aside by the learned joint Charity Commissioner. The learned Joint Charity Commissioner passed an order of remand with a direction to the Assistant Charity Commissioner to hold further enquiry by giving full opportunity to the parties. It is this order which was challenged in the Misc. Application No.319 of 2001. 8. In this context, a reference will have to be made to the order dated 13th September 2005 passed in Writ Petition No.4373 of 2005. The relevant part of the operative part of the said order reads thus : "2. The learned District Judge shall finalise the Voters’ list filed in Appeal/ Application No.319 of 2001 on or before 28th October 2005." 9. The learned Joint Charity Commissioner has passed an order of remand with a direction to the Assistant Charity Commissioner to finalise the list of the members. It is true that the said order of remand was challenged in the District Court by filing the Misc. application No.319 of 2001. In a normal course, the District Court was required to consider the merits of the order of remand. However, this court has exercised the writ jurisdiction directing the District Court -6- to finalise the voters’ list i.e. the list of the members. Therefore, the District Court had no option but to implement the order passed by this court and to finalise the list of voters/eligible members. By the impugned order, the District Court has complied with the direction given by this court. 10. When the attention of the counsel appearing for the Appellant was invited to the aforesaid order dated 17th September 2004 passed by this court, time was granted to the Appellant to seek clarification as regards the said order. It is admitted that the learned Judge who has passed the order dated 13th September 2005 has declined to issue necessary clarification. Therefore, in view of the order passed by this court, it is not possible to find fault with the decision of the District Court, if the District Court has completed the exercise of finalising the list of voters. In view of the order of this Court nothing further was required to be done by the District Court. 11. In so far as the rejection of the application at exh.88 is concerned, it must be noted here that this court had not directed the District Court to issue a public notice. The jurisdiction exercised by the District Court was on the basis of the order passed by this court. Therefore, it was the duty of the District Court to finalise the list of the members on the basis of the material which was available on record. Time schedule was fixed by this court by directing that the list of -7- voters shall be finalised on or before 28th October 2005. Therefore, it is difficult to find fault with the order of the District Court rejecting the application at Exh.88. It must be also stated here that when the matter was before the Assistant Charity Commissioner, a public notice was issued by the Assistant Charity Commissioner. 12. On the basis of the material which was available on record and after scanning the said material, the list of voters has been finalised by the District Court in terms of the direction issued by this court. No substantial question of law arises. No case is made out for interference with the findings of fact recorded by the District Court. 13. At this stage the learned counsel for the Appellant submitted that the collusion between the revision applicant before the Joint Charity Commissioner and the secretary of the trust is apparent from the fact that the said persons are represented by the same Advocate in the Appeal. He submitted that this fact supports the contention of the Appellant that there was a collusion between the secretary of the trust and the revision applicant before the Joint Charity Commissioner. In view of the direction issued by this court it was not necessary for the learned District Court to go into the question of legality and validity of the order of remand passed by the learned Joint Charity Commissioner. There is no merit in the Appeal and the same is accordingly dismissed with -8- no order as to costs. JUDGE JUDGE JUDGE