1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 5484 OF 2008 Subhash s/o Karbasappa Tadkale & ors. ...Petitioners VERSUS Vishnupanth Dattatraya Choudhary & ors. ...Respondents ..... Shri V.D.Gunale, advocate for the petitioners Shri S.S.Jadhavar, advocate for respondent nos. 1, 15 and 16 Respondent nos. 5, 7, 8, 10, 12 and 14 served, absent. Respondent Nos. 6, 9 and 13 since died. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 8th December, 2009 PER COURT : 1 Perused. Heard learned counsel for the parties. 2 At the out set, it is to be noted that by order dated 18.9.2008, passed by this court, notice was issued for final disposal of the petition at the admission stage and ad-interim 2 relief was granted staying the proceedings of Miscellaneous Civil Application No. 4 of 2008, pending on the file of District Judge-I, Omerga, District Osmanabad until further orders. 3 By the present writ petition, the petitioners herein have prayed that the order dated 5.3.2008 in respect of registration of Miscellaneous Civil Application no. 4 of 2008 and order dated 2.5.2008 of issuance of notices to the respondents in Miscellaneous Civil Application No. 4 of 2008 passed by the learned Incharge District Judge-I, Omerga, District Osmanabad be quashed and set aside. 4 It is the contention of the petitioners that respondent no.1 herein, namely Vishnupanth Dattatraya Choudhary preferred an application before the District Judge-I, Omerga, District Osmanabad against the petitioners herein, purportedly under Section 50-A(1) of the Bombay Public Trusts Act and made prayer therein that the said application be allowed and respondent nos. 1 to 13 therein be punished for their illegal acts as well as for contempt of court for disobeying the order passed on 12.12.2007. 5 It is also the contention of the petitioners that in fact 3 the provision of Section 50-A(1) of the Bombay Public Trusts Act is in respect of power of the Charity Commissioner to frame, amalgamate or modify the schemes. However, respondent no.1 herein preferred said application under the provision of Section 50-A(1) of the Bombay Public Trusts Act, but pertinently made the prayer therein in respect of alleged contempt of court as mentioned herein above. Hence, it is the contention of the petitioners that the Superintendent of the District Court should not have registered the said application which was allegedly registered on 5.3.2008 and further it is the grievance of the petitioners that the learned District Judge-I, Omerga has issued notices to the respondents vide order dated 2.5.2008 without application of mind. Hence, according to the learned counsel for the petitioners, in fact, the District Judge-I should have considered the contents of the said application and thereafter should have passed the order thereon, but so did not happen. 6 It is further submitted that even assuming for the sake of assumption the said application was preferred by respondent no.1 herein for contempt of court, District Judge-I, Omerga, District Osmanabad has no jurisdiction to entertain the said application. Learned counsel for the petitioners submitted that the order dated 5.3.2008 passed in respect of registration of the said 4 Miscellaneous Civil Application No. 4 of 2008 and the order of issuance of notices, passed by the learned Incharge District Judge-I, Omerga, District Osmanabad on 2.5.2008 are required to be quashed and set aside. 7 Shri Jadhavar, learned counsel for the respondents pointed out at the out set that the petitioners herein have not annexed the impugned order dated 5.3.2008 in respect of registration of Miscellaneous Civil Application No. 4 of 2008 to the present petition and without annexing the said order, present petition cannot be entertained. Learned counsel for the respondents further pointed out that the respondents in the said Miscellaneous Civil Application No. 4 of 2008 did not appear before the District Judge-I, Omerga, District Osmanabad and did not point out that the said court has no jurisdiction to entertain the said application and even had no jurisdiction to register the said application, but without adopting the said recourse the petitioners herein have directly approached to this court under writ jurisdiction which cannot be permitted. In substance, it is the contention of the learned counsel for the respondents that efficacious remedy was available to the petitioners herein, which was not adopted by the petitioners, and therefore, present petition cannot be entertained and same is required to be 5 dismissed. 7 After considering the averments in the present petition, as well as considering the rival contentions of the parties, at the out set, admittedly the petitioners herein have not annexed the impugned order dated 5.3.2008 in respect of registration of Miscellaneous Civil Application No. 4 of 2008 passed by the learned Incharge District Judge-I, Omerga, District Osmanabad to the present petition. However, during the course of arguments, learned counsel Shri Gunale tendered a certified copy of the said order and same is taken on record and marked 'X' for identification purpose. It is seen from the said order that Incharge Superintendent of the District Court, Omerga has passed the said order on 5.3.2008 as follows :- “ Examined and ordered to be registered as Miscellaneous Application.” Thereafter, it appears that the said application was registered as application bearing Miscellaneous Civil Application No. 4 of 2008 and was placed before the learned Incharge District Judge-I, Omerga, District Osmanabad, whereon the said learned Judge has passed another impugned order on 2.5.2008 as under :- 6 “ Issue notices to respondents, returnable on 21.6.2008.” 8 Thus, it is amply clear that in pursuance of the said notices, respondents in the said application I.e. the petitioners herein could have approached to the learned District Judge-I, Omerga, District Osmanabad, and could have pointed out the alleged illegality in registration of the said application on 5.3.2008 by Superintendent and also could have pointed out that the said court allegedly had no jurisdiction to pass the order dated 2.5.2008 of issuance of notices to the respondents in the said application, but without adopting the said available remedy, the respondents in the said application I.e. the petitioners herein have approached to this court under writ jurisdiction, which cannot be permitted. 9 In substance, an efficacious remedy was available to the petitioners, which has not been adopted by the petitioners, and therefore, present petition under Article 227 of the Constitution of India cannot be allowed and same is required to be dismissed. However, while dismissing the present petition, liberty is required to be granted to the petitioners to appear in 7 Miscellaneous Civil Application No. 4 of 2008 pending before learned District Judge-I, Omerga, District Osmanabad and put forth their grievances regarding jurisdiction and maintainability of the said application before the said forum. 10 In the result, present petition deserves to be dismissed and same stands dismissed, and ad-interim relief granted therein on 18.9.2008 stands vacated. However, the petitioners are at liberty to appear before the learned District Judge-I, Omerga, District Osmanabad in Miscellaneous Civil Application No. 4 of 2008 and put forth their grievances regarding jurisdiction and maintainability of Miscellaneous Civil Application no. 4 of 2008 before the said forum. (SHRIHARI P. DAVARE, J.) dbm/wp5484.08