*1* wp.3443.11.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3443 OF 2011 WITH CIVIL APPLICATION NO.1231 OF 2011 Bhartiya Kala Prasarini Sabha and another. ..Petitioners -Versus- Joint Charity Commissioner, Pune and others. ..Respondents .......... Mr.S.V.Pitre with Mr.Mahesh Subramaniam and Mr.D.R.Kawale i/b M/s Manoj Wadekar & Associates, for the Petitioners. Ms.P.S.Cardozo, AGP, for the Respondent Nos.1, 2, 5 and 7. Mr.Uday Warunjikar, for the Respondent Nos.3 and 4. Mr.M.S.Ranade, for the Respondent No.8. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 29th June, 2011. P.C.: 1 Heard both sides. By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Petitioners, which include Petitioner No.1 Bhalchandra Mohiniraj Pathak and Petitioner No.2 Ramchandra Sadashiv Pise claiming themselves as Secretary and President of the Petitioner No.1 Trust, are challenging the orders that have been made on 28.02.2011 and 07.04.2011. By the first order the Joint Charity Commissioner, Pune has passed a direction that the cheque which is ready should be signed by the Principal only and it be encashed for payment of salaries to the employees. The second order is made by the Charity Commissioner, Maharashtra State, Mumbai which reads thus:- *2* wp.3443.11.sxw “Heard. Perused the documents on record. The Respondent No.3 is absent though duly served. After hearing the Advocate for Applicant, I am satisfied that the Respondent No.3 should be restrained from entering in to premises of colleges of Bhartiya Kala Prasarini Sabha, Pune. Hence, Respondent No.3 is restrained accordingly. The other prayers will be considered at the time of next hearing” 2 That order dated 07.04.2011 has been stated to have been made on an application for transfer being Applicant No.6/2011. That application has been made by the Respondent Nos.3 and 4 before me pointing out that the Joint Charity Commissioner has acted prejudicially and there is apprehension that they will not get justice. During the course of argument on this application, it appears that the order reproduced above has been passed. Both sides do not dispute that the main proceedings are pending. They invoked the jurisdiction of the authority, namely, the Charity Commissioner under Section 41A of the Bombay Public Trusts Act, 1950. That application being Application No.4/2011 is filed by the contesting Respondent Nos.3 and 4 to this Writ Petition and for whom Mr.Uday Warunjikar has appeared before this Court. 3 Mr.Pitre, learned counsel appearing for the Petitioners, submits that the Joint Charity Commissioner, as also, the Charity Commissioner by the orders that are impugned in this petition, made it impossible to administer day to day affairs of the Trust. The Charity Commissioner has purported to take cognizance of the application for transfer of the proceedings from the Joint Charity Commissioner, Pune to another Joint Charity Commissioner. Taking cognizance of such application is an act which is distinct than going into the merits and particularly considering the request to restrain Mr.Pathak from entering the Trust premises. Mr.Pitre submits that Mr.Pathak has been functioning *3* wp.3443.11.sxw as Secretary for number of years. There are attempts to usurp and grab the trust properties and rest of the trustees have not shown any lack of faith in Mr.Pathak. The distinct educational activity of the trust and the institution which is managed by the Principal and which receives the Government aid and grants, by itself will not enable the Principal to take part in the affairs of the Trust. The Principal is not a trustee, but he is full time employee of the educational institution which is managed and administered by the Trust. This distinction has not been borne in mind while passing the impugned orders, giving authority to sign the cheques and withdraw the funds of the Trust, to the Principal. 4 On the other hand, it is contended that there are serious allegations made in the main application, so also, in the transfer application. Ad-interim orders of this Court will not enable those who are incharge, to perpetuate and continue their wrongful and illegal acts. In such circumstances, this Court should not interfere with the interlocutory orders. 5 After the matter was argued for sometime, a suggestion was given to both sides that the main application No.4/2011 which is pending before the Joint Charity Commissioner, Pune can be decided expeditiously so as to put an end to all apprehensions and disputes. That course has been accepted by both sides. However, Mr.Warunjikar submits that the transfer application is pending, therefore, this Court should not interfere with the order of the Charity Commissioner on the transfer application, restraining the Secretary from entering the trust premises. He points out that this order is essentially passed on the pursis that has been filed on 21.03.2011 in which the Secretary on his own stated that he would like to keep himself away from the trust premises as that would enable the examinations to be conducted without any obstruction and hindrance. *4* wp.3443.11.sxw That being voluntary act, there is no reason to interfere with the order passed by the Charity Commissioner. As far as other order and direction is concerned, he submits that the Principal is appropriate authority and he will release the funds as and when required for payment of salaries and day to day expenses and the Secretary should not be permitted to sign the cheques as that would complicate the matter. 6 On the other hand, Mr.Pitre points out that both orders have been stayed by this Court on 03.05.2011, therefore, the Secretary is signing the cheques and there is no apprehension that the funds are being misused or misutilized or siphoned away. In such circumstances, the status-quo be continued. 7 After hearing both sides on this issue and without expressing any opinion on the merits of controversy, I am of the opinion that prima facie the order of the Charity Commissioner purportedly made on the pursis on 07.04.2011 cannot be sustained. It is not clear as to how the Charity Commissioner while taking cognizance of the transfer application passed an order restraining the Secretary from entering the premises of colleges of the Trust. This restraint on free movement of a person could not have been placed by the Charity Commissioner in the absence of any power to do so. The order does not indicate any source of power nor does the Charity Commissioner state that he possesses such powers otherwise in law. In such circumstances, this order is clearly beyond the scope of adjudication that was contemplated under the transfer application and in any event beyond the powers conferred on the Charity Commissioner. That order being clearly unsustainable is set aside. 8 As far as other order is concerned, that was to enable the release of salaries for the month of March, 2011. However, it is stated that for past three months, dues of some of employees towards salaries have *5* wp.3443.11.sxw not been paid. It has also been pointed out that from 03.05.2011 till this date there has been no complaint although some amounts have been released thereafter. Bearing in mind that the main application is pending and considering the nature of allegations and that final finding is yet to be rendered by the Joint Charity Commissioner, interest of justice would be served if it is directed that till the main application is heard and disposed of, the salaries of staff of three educational institutions shall be released after the cheques in that behalf are signed by the Principals of the respective colleges together with the Secretary. This arrangement will be without prejudice to the rights and contentions of both sides and will not in any manner confirm the status as claimed by Mr.Bhalchandra Mohiniraj Pathak. The order will not in any manner be construed as expression of opinion by this Court on his status or otherwise. All contentions in that behalf of both sides are kept open. Needless to clarify that save and except the payment of salaries and day to day expenses of these three institutions/colleges, no other borrowing or withdrawals from the subject bank accounts will be permitted even in the name or under the signature of the Secretary of Trust. This arrangement is only to have smooth functioning of the educational institutions which are really not concerned with the disputes between the trustees and those claiming to be interested in the affairs of the Trust. 9 In these circumstances, the order dated 28.02.2011 passed by the Joint Charity Commissioner stands modified in the above terms and it shall operate during the pendency of the main application. The order dated 07.04.2011 passed by the Charity Commissioner is set aside. 10 The Joint Charity Commissioner shall decide the Application No.4/2011 within a period of two months from today without being influenced by any of the orders passed by the authorities and the *6* wp.3443.11.sxw observations made in this order. All contentions of both sides, including on the maintainability, jurisdiction and merits are kept open. 11 It is agreed that the parties will appear before the Joint Charity Commissioner on 07th July, 2011 and thereafter, the proceedings shall be concluded within the time stipulated above. 12 The Writ Petition is disposed of in the above terms. No costs. In view of disposal of the Writ Petition, the Civil Application does not survive and hence, it stands disposed of. (S.C. Dharmadhikari, J)