1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2269 OF 2010 (Executive Board of the Methodist Church & Anr. vs. Methodist Episcopal Church thro. its Trustees) with WRIT PETITION NO. 2283 OF 2010 (Dr. Sushil Kumar Titus vs. Methodist Episcopal Church & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 17, 2010. Heard Shri Khapre and Shri Kulkarni, learned counsel for the petitioners in the respective writ petitions, Shri Pillai, learned counsel for respondents No. 1 to 11 in Writ Petition No. 2269 of 2010 and for respondents No. 1 to 12 in another writ petition. Shri Samudra, learned counsel for Respondent No. 13 in Writ Petition No. 2269 of 2010 and for Respondent No. 14 in Writ Petition No. 2283 of 2010. Shri Sonare, learned AGP is appearing for the Respondent - Assistant Charity Commissioner in both the matters. Shri Kulkarni, learned counsel has assailed the order dated 15.04.2010 passed by the Assistant Charity Commissioner, Nagpur, in proceedings under Section 41-A of Bombay Public Trusts Act, 1950, (hereinafter referred to as the Act) contending that the reply filed by the petitioners i.e. non applicant Nos. 1 & 2 in proceedings before the Assistant Charity Commissioner, has not been looked into at all and their 2 arguments are also not considered. He states that there is erroneous observation that respondent No. 1 has not filed their reply. He further points out that there is observation to the contrary little earlier in the impugned order which mentions specifically that such reply is on record. He has also attempted to address this Court on merits to point out that case under Section 41-A of the Act is not made out in present facts. It is urged that the basic dispute is about collection in a Church which the respondents claimed to own and that dispute is pending before the Competent Civil Court. In this background, his contention is non consideration of reply filed by petitioner No. 1 and non consideration of arguments advanced, has resulted in material prejudice. He points out that because of impugned order, the present petitioners are restrained from dealing with their own bank accounts and other properties. Shri Khapre, learned counsel in Writ Petition No. 2269 of 2010 has challenged the very same order. He points out that petitioner No. 1 is the most affected party in the matter and that petitioner was not joined as party to proceedings under Section 41-A of the Act. He further contends that petitioner No. 2 has filed reply before the Assistant Charity Commissioner disclosing the facts and also pointing out that petitioner No. 1, a registered Public Trust is really affected person in the matter and in spite of that, said person has not been 3 joined as party. He has also invited attention to the fact that the Respondent – Trust by name Methodist Episcopal Church has been registered for the first time on 01.10.2009 and according to him this fact itself is sufficient to dismiss the application under Section 41-A of the Act, as filed. Shri Pillai, learned counsel, on the other hand, has contended that the story of petitioners before this Court about there being different Churches i.e. Marathi, Hindi and English is misconceived. There is only one Church and the Church belongs to the respondent – Trust. Because of this, all collections in the said Church must be given to the respondent - Trust and hence the respondent – Trust has claimed all the amount of such collections till 30.09.2008. He further states that after appreciation of controversy, the Assistant Charity Commissioner has found substance in the grievance made by said Church and the respondents, and thereafter has passed orders under Section 41-A of the Act. Though all counsel have tried to show to this Court the substance in their respective contentions by urging that the proceedings under Section 41-A of the Act are either misconceived or then have got merit, it is apparent that the reply filed by the petitioner in Writ Petition No. 2283 of 2010 has not been considered at all by the Assistant Charity Commissioner. Not only this but even the arguments advanced on his behalf are not considered and order has been passed. 4 The contention of Shri Khapre, learned counsel about locus and status of petitioner No. 1 raised in High Court for the first time also cannot be considered because apart from mentioning that petitioner No.1 is really affected person, petitioner No. 2 has not made any other submission before the Assistant Charity Commissioner in the matter. The contentions being raised by Shri Kulkarni and Shri Khapre, learned counsel are dependent upon certain findings of fact and those findings need to be recorded by the Assistant Charity Commissioner. By this, it is not meant that the proceedings under Section 41-A of the Act are maintainable and contention of the petitioners that such proceedings are misconceived has to be looked into by the Assistant Charity Commissioner only. As I find that the material available on record in reply of Writ Petition No. 2283 of 2010 has not been looked into by the Assistant Charity Commissioner, the said order is vitiated for non application of mind and also there is failure to exercise jurisdiction. Hence, that order is quashed and set aside. The authority is directed to reconsider the application under Section 41-A of the Act as filed in the light of reply and arguments of all parties before it and to decide the same afresh as early as possible and in any case within a period of two months and after the parties appear before it. As the impugned order is already quashed and set aside, the contentions of Shri Khapre, learned 5 counsel in Writ Petition No. 2269 of 2010, need not be considered in more details at this stage. Petitioner No. 1 admittedly has not moved any application for getting it impleaded before the Assistant Charity Commissioner. Petitioner No.1 is at liberty to move appropriate application before that authority and if any such application is moved, the Assistant Charity Commissioner will decide that application on its own merit independently uninfluenced by any observations made by this Court in the present order. While issuing notice in the matter, this Court has passed interim orders on 06.05.2010 and restrained the petitioners before this Court from dealing with Bank accounts and also directed them not to create any encumbrance to the prejudice of the respondents. That interim order continues to operate till today. Shri Khapre, learned counsel has pointed out that because of interim orders, petitioner No. 1 in Writ Petition No. 2269 of 2010 is not in a position to manage its day-to-day affairs. Shri Pillai, learned counsel has pointed out that the collections made in the Church till 30.09.2008 are only in dispute in the proceedings under Section 41-A of the Act. In view of his statement, it is apparent that the collections from 01.10.2008 onwards can be utilized by petitioner No. 1 to meet day-to-day expenditure. Thus, interim order granted by this Court is modified only to that extent and petitioner No. 1 in Writ Petition 6 No. 2269 of 2010 is permitted to incur day-to-day expenditure from the collections after 01.01.2009 with it. However, Petitioner No. 1 shall maintain accounts for the same and shall produce them before the Authority as and when called for. The respective Banks i.e. Bank of Baroda, Bank of Maharashtra and Shikshan Sahakari Bank shall permit the said petitioner No. 1 to operate Bank account only for meeting such day-to-day expenditure in accordance with law from the collections which are deposited in said accounts after 01.01.2009. It is made clear that this liberty and direction is only by way of interim arrangement and shall not influence the Assistant Charity Commissioner while passing final orders in the matter. The parties are directed to appear before the Assistant Charity Commissioner on 30th June 2010 and to abide by its further directions in the matter. Writ Petitions are disposed of. Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE *GS.