1 wp572 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.572 OF 2011 Bapu Mallappa Kinige & Anr. ...Petitioners vs. Jain Basti Dev & Ors. ...Respondents Mr.Umesh Mankapure for the Petitioners Mr.A.B.Borkar for the respondents CORAM : A.S.OKA,J. DATE : OCTOBER 13, 2011 P.C.: 1 Heard the learned counsel for the petitioners. As the Regular Court taking up writ petitions (Other Acts) could not take up this petition, the same has been placed before this Court as per the Administrative order of the Hon ble the Chief Justice. 2 The challenge in this petition is to the order dated 9 th August 2010 passed by the learned Assistant Charity Commissioner. The said order has been passed on the application mat at Exh.39. 3 Enquiry application is pending before the learned Assistant Charity Commissioner. The application is filed at the instance of the 4 th respondent. The application has been filed by invoking section 50A (1) of the Bombay Public Trusts Act,1950. The prayer in the application is for grant of sanction to the scheme/constitution of the public 2 wp572 trust by the name Shri Jain Basti Dev, Bedag, Taluka Miraj, District Sangli. The application was filed by the fourth respondent along with one Mahavir who died during the pendency of the Application. It appears that the fourth respondent filed an application in the pending enquiry application for impleading third respondent as a party applicant no. 2. The said application was rejected. Subsequently, the third respondent filed an application at Exh.39 in which a prayer was made that he be added as an applicant in the enquiry application. By the impugned order, the said application has been allowed. 4 The learned counsel for the petitioner submitted that the earlier application made by the fourth respondent was rejected. He submitted that the application under section 50 cased to be maintainable after the demise of the original applicant no.2. He submitted that the third respondent has not shown as to how he is interested in the trust. He submitted that section 73 will have no application in the present case. He submitted that the order impugned is illegal, perverse and is liable to be set aside. 5 I have carefully considered the submissions. It is true that after the demise of the original second applicant-Mahavir, the fourth respondent who is the first applicant in the said application made an application for amendment of the enquiry application for incorporating the name of the third respondent as an applicant. By order dated 15 th January 2009, 3 wp572 the learned Assistant Charity Commissioner rejected the said application. Perusal of the said order shows that the application was rejected on the ground that Rule 17 of Order VI of the Code of Civil Procedure,1908 will have no application in as much as a party cannot be added under the said provision. The learned Assistant Charity Commissioner observed that the first applicant in the enquiry application has appropriate remedy if he desires. 6 After rejection of the said application, on 1 st January 2010, the third respondent filed an application under section 73-A of the said Act. In the said application he stated that he is a devotee of the temple and he visits the temple everyday. In the impugned order, the learned Assistant Charity Commissioner observed that the earlier application made by the fourth respondent was rejected as not maintainable and the present application was made under a different provision of the said Act. Considering the averments made in paragraph 1 of the application, the learned Assistant Charity Commissioner has allowed the application by impleading the third respondent as the second applicant. The learned Assistant Charity Commissioner was right in holding that under section 73-A, a third party can also be impleaded as an applicant. 7 After demise of the second applicant in the enquiry application, the third respondent applied for being impleaded as the applicant claiming to be a person having an interest in the trust and has 4 wp572 been impleaded as a party second applicant. The application is for settling the scheme of the trust. There is no illegality. 8 Hence, it is not possible to find fault with the impugned order. Petition is rejected. 9 All contentions of the parties in the main enquiry application are kept open. JUDGE