1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR FIRST APPEAL NO. 89/2006 (Smt. Radhabai wd/o Govindrao Shewalekar & 5 ors. Vs. A.C.C., Bhandara & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. R.L. Khapre, Adv. For the appellants. Mr. A.D. Sonak, A.G.P. for respondent nos. 1 and 11. Mr. Shantanu Khedkar & Mr. R.A. Gupte, Advocates, for respondent nos. 2 to 10. CORAM : Smt. Vasanti A. Naik, J. DATED : 29 th JULY, 2008. Though the matter is registered as a first appeal, it is considered and heard as if it is a second appeal, as it is a settled position of law that an appeal under Section 72(4) of the Bombay Public Trusts Act (hereinafter referred to as the Act), is in the nature of second appeal under Section 100 of the Code of Civil Procedure and the same is not maintainable unless it involves a substantial question of law. Heard the learned counsel for the parties. The appellants are the original Objectors who had objected to the framing of a Scheme by the Assistant Charity Commissioner, Bhandara in Suo Motu Proceedings No. 105/1998. It is not in dispute that one Shri Baburao Shewalekar was the 2 Wahiwatdar of Shri Dattatraya Swami Mandir situated at Khamb Talao, Bhandara. He was also Pujari of the said temple. After the death of Baburao, said temple was managed by his two sons by name Govindrao and Balkrishna. In the year 1979, deosthan was registered as a public trust in Enquiry Case No. 656/1979. By the order dated 16/9/1985, the Deputy Charity Commissioner, Nagpur, directed Govindrao to move the Joint Charity Commissioner for framing of a Scheme. An appeal was filed by Shri Govindrao under section 70 of the Act, against the order dated 16/9/1985. The Joint Charity Commissioner, however, dismissed the appeal by the order dated 9/10/1997. The Assistant Charity Commissioner, Bhandara, thereafter, initiated suo motu proceedings No. 105/1998 and framed a Scheme for the better management of the Trust. Seven persons were nominated by this Scheme as Trustees. The order was passed by the Assistant Charity Commissioner, Bhandara on 19/4/2001. The order dated 19/4/2001 was challenged in M.J.C. No. 60/2001, under the provisions of Section 72(1) of the Act, but the said application was rejected by the order dated 1/11/2001. In an appeal filed against the two orders, this Court in First Appeal No. 476/2001 remanded the matter to the Assistant Charity 3 Commissioner, Bhandara, for framing of the Scheme, after granting an opportunity to the appellants. After remand, the Assistant Charity Commissioner, Bhandara, framed the Scheme on 8/4/2004 and inducted eleven persons including two legal heirs of the original Wahiwatdar Shri Baburao Shewalekar, as the Trustees. The appellants filed an objection to the Scheme framed by the order dated 8/4/2004 by filing an appeal under the provisions of Section 72(1) of the Act, before the District Judge, Bhandara. The District Judge, Bhandara, dismissed the M.J.C. No. 39/2004 by the judgment dated 25/1/2006 and confirmed the order passed by the Assistant Charity Commissioner on 8/4/2004. The order dated 8/4/2004 and the judgment dated 25/1/2006 are challenged in the instant appeal. Shri Khapre, the learned counsel for the appellants, submitted that it was necessary for the Assistant Charity Commissioner to have made a provision for the maintenance of the appellants, who are the legal heirs of original Wahiwatdar Shri Baburao Shewalekar, in the Scheme framed on 8/4/2004. According to the counsel for the appellants, since the Scheme does not make any provision for the maintenance of the legal heirs and 4 the family members of the original Wahiwatdar Shri Baburao Shewalekar, the order dated 8/4/2004 and the judgment dated 25/1/2006 are vitiated. The counsel for the appellants relied on the judgment reported in A.I.R . 2001 SC 3726 and an unreported judgment of this Court in case of Tukaram Ganesh and another Vs. Dattatraya Madaho Pattewar in Appeal No. 99 of 1963 delivered on 14th October, 1970, to substantiate the submission that it is necessary to grant a right of maintenance in the Scheme framed on 8/4/2004. The counsel for the respondents supported the order dated 8/4/2004 and also the judgment dated 25/1/2006, and submitted that the appellants had not made any grievance about the absence of grant of any right of maintenance to them in the Scheme dated 8/4/2004, in the objection filed by them. According to the counsel for the respondents, the submission made on behalf of the appellants is an afterthought and such a grievance is made for the first time in M.J.C. No. 39/2004 filed before the District Judge, Bhandara. It is also submitted on behalf of the respondents that the Trust being a Public Trust, and since there was no such right in the appellants even prior to the framing of the Scheme, the appellants cannot claim a right of maintenance, specially in an appeal filed 5 by them against the Scheme dated 8/4/2004 before the District Judge, Bhandara. It is also submitted on behalf of the respondents, by taking this Court through the observations of the District Judge, Bhandara in paragraph 16 of the judgment, that the appellant no.1- Radhabai had admitted that no accounts of the money received by the Temple in any form, had been maintained by them and she was not able to assign any reason for not maintaining the accounts. She had also admitted in her evidence that though the Trust was a registered Public Trust, it was looked after as if it was the personal property of Shri Baburao Shewalekar. It is in this background, according to the counsel for the respondents, the Scheme was directed to be framed and was also framed for the better management of the Trust. It is submitted on behalf of the respondents that two members of the family of Baburao Shewalekar i.e. Wahiwatdar are inducted as trustees and hence, it cannot be said that there was no representation of the family members of Baburao Shewalekar, in the Board of Trustees. It is lastly submitted on behalf of the respondents that the Assistant Charity Commissioner has categorically stated in paragraph 30 of the order dated 8/4/2004 that the parties and their counsel had made a statement at bar that the Scheme 6 framed previously was correct and in this background, the appellants cannot now turn round and say that the Scheme framed by the Assistant Charity Commissioner on 8/4/2004 was not correct as it did not provide any maintenance facility to the family members of the original Wahiwatdar. The counsel for the respondents submitted that the findings recorded by both the Courts are findings of facts and, therefore, the present appeal is liable to be dismissed. I have considered the submissions made on behalf of the parties. I have also perused the judgments passed on 8/4/2004 and 25/1/2006 in detail. It is not in dispute that originally, when the Scheme was framed by the Assistant Charity Commissioner on 19/4/2001, no opportunity was granted to the appellants and hence the matter was remanded to the Assistant Charity Commissioner, Bhandara, for a fresh enquiry for framing of the Scheme. Both the impugned orders clearly reveal that the appellants were afforded due and reasonable opportunity of hearing by the Assistant Charity Commissioner, before the Scheme was framed on 8/4/2004. In fact, before the Assistant Charity Commissioner, a statement was made on behalf of the parties by their counsel that the Scheme framed previously was correct. In spite of 7 the aforesaid statement made on behalf of the parties, the Assistant Charity Commissioner framed a Scheme which was advantageous to the appellants as, by hereditary succession, one member from the family of Govindrao Shewalekar and one member from the family of Balkrishna Shewalekar were inducted on the Board of Trustees. Hence, in the Scheme framed by the Assistant Charity Commissioner on 8/4/2004, an additional benefit was given to the heirs of Govindrao and Balkrishna, though they had admitted that the Scheme framed previously, was a correct one. It is further necessary to note that the appellant no.1 had admitted in her evidence that though it was a public trust, it was managed by the appellants as a private property of their own and they had also not maintained the accounts of the moneys received by the Trust. The District Judge, Bhandara, had categorically observed in the judgment dated 25/1/2006 that the appellants were given due opportunity by the Assistant Charity Commissioner before framing of the Scheme. I have perused the objection filed by the appellants to the Scheme framed by the Assistant Charity Commissioner on 8/4/2004. This objection does not make any grievance about the absence of a provision pertaining to maintenance. The challenge 8 to the Scheme on the ground of absence of such provision appears to be an afterthought and such a grievance is made for the first time in the appeal under Section 72(1) of the Act filed before the District Judge, Bhandara. Even otherwise, the Trust being a Public Trust and since two of the legal heirs of the original Wahiwatdar Shri Baburao Shewalekar are included in the Board of eleven Trustees, it is not necessary to make any provisions for the maintenance of the legal heirs of the original Wahiwatdar. The trust is registered as a Public Trust in the year 1979 itself. The judgments relied on by the counsel for the appellants are of no assistance to the case of the appellants as the proceedings in Appeal No.99 of 1963 decided by this Court by the judgment dated 14th October, 1970, were not initiated for framing of the scheme and the dispute in that case was pertaining to the nature of the Trust. In the other decision reported in AIR 2001 Supreme Court 3726, Scheme framed in that case had given a right to the Archak to appropriate for his own use all cash offerings made in open cups and plates, and in this background, the Court had held that the installation of a Hundi in the temple was not proper and in the interest of Archakas. For the aforesaid reasons, no fault could be found with the order passed by the Assistant 9 Charity Commissioner, Bhandara, on 8/4/2004 and the judgment passed by the District Judge, Bhandara, on 25/1/2006. Since no substantial question of law arises for consideration in this appeal, same is dismissed. No order as to costs. JUDGE RMP