1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7256 /2010 1] Shri Nandlal Taniram Sonje, Age 68 years, Occ-Business At present working as President Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Avadhut Nagar, Chitod Road, Dhule, Tq. & Dist.Dhule. 2] Shri Bhaskar Bhila Patkar Age 52 years, Occ-Service At Present working as Secretary, Shri Ladshakiya Wani Samaj Sanstha, Dhule R/o Shakuntal, Navarang Colony, Near Watar Tank, Deopur, Dhule Tq. & Dist.Dhule 3] Kashinath Beniram Sonje Age 74 years, Occ-Trustee Shri Ladshakiya Wani Samaj Sanshta, Dhule R/o Lane No.4, Dhule, Tq. & Dist.Dhule 4] Shri Anil Gangadhar Songire Age 50 years, Occ-Treasurer, Shri Ladhsakiya Wani Samaj Sanstha, Dhule R/o Lane No.6, Dhule Tq. & Dist.Dhule. 5] Ramesh Shridhar Nankar 2 Age 55 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Charni Road, Galli No.5, Tq. & Dist.Dhule. 6] Shri Vasant Hari Dev Age 55 years, Occ-Business, Trustee, Shri Ladhsakiya Wani Samaj Sanstha,Dhule R/o Galli No.2, Mullavada Dhule, Tq. & Dist.Dhule 7] Gajanan Ramdas Wani Age 55 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Subhash Nagar, Galli No.8 Old Dhule, Tq. & Dist.Dhule. 8] Arun Trimbak Hude Age 55 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Besides Chital Hospital Deopur, Dhule, Tq. & Dist.Dhule 9] Dr.Kishor Jagannath Ksaodekar Age 50 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Lane No.14, Old Dhule Tq. & Dist.Dhule. .. PETITIONERS VERSUS 1] The State of Maharashtra Through its Principal Secretary 3 Law & Judiciary Department Mantralaya, Mumbai 2] The Joint Charity Commissioner, Nashik Region, Nashik 3] The Assistant Charity Commissioner, Dhule, Dist. Dhule 4] Ashok Shravan Patkar Age 56 years, Occ-Business R/o Plot No.17, Patkar Nagar Deopur Colony, Dhule 5] Shri Narendra Jagannath Deo Age 54 years, Occ-Advocate R/o 7/B, Rajhans Colony Behind Natraj Theatre, Dhule Tq. & Dist.Dhule 6] Shri Ramakant Pundlik Shirode Age 55 years, Occ-Medical Practitioner R/o Nizampur, Tq. Sakri Dist,Dhule 7] Waman Vishnu Shinkar (Since Deceased) 8] Shri Vishnu Vitthal Wani Age 70 years, Occ-Nil Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Yashwant Book Depot, Neharu Chowk, Deopur Dhule. 4 9] Bhika Shridhar Amrutkar Age : years,Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Bhika Shridhar & Company Sugar Lane, Charni Road, Dhule Tq. & Dist.Dhule. 10] Purushottam Soniram Shinkar Age 58 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o House No.1496, Agra Road Dhule, Tq. & Dist.Dhule. 11] Vasantrao Shankarrao Amrutkar Age Years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Badgujar Plot, Near Prachi Medical Parola Road, Dhule, Tq. & Dist.Dhule 12] Atmaram Chindu Salvekar Age Years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Dhanai Punai Colony Near Suratwala Building ,Chitod Road Dhule, Tq. & Dist.Dhule. 13] Kashinath Dagadu Wani Age 70 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Dhanai Punai Colony, Near Railway station Dhule,Tq. & Dist.Dhule. 5 14] Shivram Taniram Yeole (Since deceased) 15] Prabhulal Hari Kasodekar Age 70 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Garud Colony, Nakane Road, Deopur, Dhule Tq. & Dist.Dhule 16] Uttam Sonu Lokhande Age 65 years, Occ: Advocate Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Lane No.4, Dhule Tq.& Dist.Dhule 17] Vijay Iccharam Bahalkar Age 65 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Near Manudevi Computer Wadi Bhokar Road, Dhule Tq. & Dist.Dhule 18] Sunil Tukaram Nerkar Age 44 years, Occ-Business Trustee, Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Plot No.15, Santosh Niwas Badgujar Plot, Parola Road, Dhule Tq. & Dist.Dhule. 19] Shri Ladshakiya Wani Samaj Sanstha,Dhule District Dhule Through its Manager Shri Jagannath Taniram Wani 6 Age 50 years, Occ-Service R/o Deopur, Dhule, Tq. & Dist.Dhule. .. RESPONDENTS ..... Shri P.M.Shah,Senior Counsel I/b D.S.Bagul, for petitioners Shri P.R.Katneshwar,Adv.for R.4 to 6. Shri N.N.Jadhav,A.G.P. for State Shri Lalitkumar Mahajan,Adv.for R.14 Respondents 8 to 19 deleted as per order of Court dt.6/9/10 .... WRIT PETITION NO.7258/2010 1] Shri Kapurchand S/o Laxman Baviskar Age 44 years, Occ-Service R/o Plot No.24, Govardhan Nagar Valwadi, tq. & Dist.Dhule 2] Shri Jitendrda Dagadu Talware Age 35 years, Occ-Service R/o 7, Samarth Colony, Pramod Nagar Deopur, Dhule 3] Shri Sunil Chandrakant Amrutkar Age 33 years, Occ-Service R/o 58 years, Dnyandip Society, Near Chawala School, Wadi Bhokar Road, Dhule Tq. & Dist.Dhule 7 4] Shri Chindhu Shankar Wani Age 62 years, Occ-Retired R/o 52-B, Sambhappa Colony, Chitod Road, Dhule 5] Shri Subhash Jagannath Yeole (Wani) Age 57 years, Occ-Service R/o 71, Hudco Colony, Chitod Road, Dhule 6] Shri Kailas Eknath Amrutkar Age 39 years, Occ-Service R/o 43/B, Pramod Nagar, Sector NO.2 Deopur ,Dhule 7] Shri Rajendra Ramdas Deo Age 46 years, Occ-Business R/o Uss Galli, Dhule Tq. & Dist.Dhule. 8] Shri Prakash Shankar Deshmukh Age 58 years, Occ-Retired R/o Lane no.5, House no.1359 Dhule, Tq. & Dist.Dhule 9] Shri Jitendra Wasudeo Amrutkar Age 35 years, Occ-Business R/o 47, Professor Colony, Gurukrupa Complex, Deopur Tq. & Dist.Dhule. 10] Shri Devidas Vishnu Amrutkar Age 52 years, Occ-Business 8 R/o 2897, Agra Road, Dhule 11] Shri Ravindra Vasant Lad Age 47 years, Occ-Business R/o House No.1680, Lane no.5 Dhule, Tq. & Dist.Dhule. 12] Shri Subhash Parasram Dhamane Age 60 years, Occ-Retired R/o House NO.45, Shivpratap Colony Deopur, Dhule, Tq. & Dist.Dhule 13] Shri Laxman Vitthal Wani Age 74 years, Occ-Retired R/o 168-B, Nateshwar Society, Dhule Tq & Dist.Dhule. .. PETITIONERS VERSUS 1] The State of Maharashtra Through its Principal Secretary Law & Judiciary Department Mantralaya, Mumbai 2] The Joint Charity Commissioner, Nashik Region, Nashik 3] The Assistant Charity Commissioner, Dhule, Dist. Dhule 4] Ashok Shravan Patkar 9 Age 56 years, Occ-Business R/o Plot No.17, Patkar Nagar Deopur Colony, Dhule 5] Shri Narendra Jagannath Deo Age 54 years, Occ-Advocate R/o 7/B, Rajhans Colony Behind Natraj Theatre, Dhule Tq. & Dist.Dhule 6] Shri Ramakant Pundlik Shirode Age 55 years, Occ-Medical Practitioner R/o Nizampur, Tq. Sakri Dist,Dhule 7] Shri Nandlal Taniram Sonje Age 68 years, Occ-Business At present working as President Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Avadhut Nagar, Chitod Road, Dhule, Tq. & Dist.Dhule. 8] Shri Bhaskar Bhila Patkar Age 52 years, Occ-Service At present working as Secretary Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Shakuntal, Navarang Colony, Near Water Tank, Deopur, Dhule Tq. & Dist.Dhule. 9] Kashinath Beniram Sonje Age 74 years, Occ-Trustee Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Lane No.4, Dhule, Tq. & Dist.Dhule 10 10] Shri Anil Gangadhar Songire Age 50 years Occ-Treasurer Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Lane NO.6, Dhule Tq. & Dist.Dhule. 11] Ramesh Shridhar Nankar Age 55 years, Occ-Gusiness Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Charni Road, Galli No.5 Tq. & Dist.Dhule 12] Shri Vasant Hari Dev. Age 55 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Galli No.2, Mullavada Dhule, Tq. & Dist.Dhule. 13] Gajanan Ramdas Wani Age 55 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Subhash Nagar, Galli No.8, Old Dhule, Tq. & Dist.Dhule 14] Arun Trimbak Hude Age 55 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Besides Chitale Hospital Deopur, Dhule, Tq. & Dist.Dhule 15] Dr.Kishor Jagannath Kasodekar Age 50 years, Occ-Business 11 Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Lane No.14, Old Dhule Tq.& Dist.Dhule 16] Shri Vishnu Vitthal Wani Age 70 years, Occ-Trustee Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Yashwant Book Depot, Neharu Chowk, Deopur Dhule. 17] Bhika Shridhar Amrutkar Age : years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Bhika Shridhar & Company Sugar Lane, Charni Road, Dhule Tq. & Dist.Dhule. 18] Purushottam Soniram Shinkar Age 58 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o House No.1496, Agra Road Dhule, Tq. & Dist.Dhule 19] Vasantrao Shankarrao Amrutkar Age Years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Badgujar Plot, Near Prachi medical Parola Road, Dhule, Tq. & Dist.Dhule. 20] Atmaram Chindu Salvekar Age Years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule 12 R/o Dhanai Punai Colony, Near Suratwala Building, Chitod Road, Dhule, Tq. & Dist.Dhule. 21] Kashinath Degadu Wani Age 70 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Dhanai Punai Colony, Near Railway Station, Dhule, Tq. & Dist.Dhule. 22] Prabhulal Hari Kasodekar Age 70 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Garud Colony, Nakane Road Deopur Dhule, Tq. & Dist.Dhule. 23] Uttam Sonu Lokhande Age 65 years, Occ-Advocate Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Lane No.4, Dhule Tq. & Dist.Dhule. 24] Vijay Iccharam Bhalakar, Age 65 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule R/o Near Manudevi Computer Wadi Bhokar Road, Dhule Tq. & Dist.Dhule. 25] Sunil Tukaram Nerkar Age 44 years, Occ-Business Trustee,Shri Ladshakiya Wani Samaj Sanstha,Dhule 13 R/o Plot No.15, Santosh Niwas Badgujar Plot, Parola Road, Dhule Tq. & Dist.Dhule. 26] Shri Ladshakiya Vani Samaj Sanstha Dhule, District Dhule Through its Manager Shri Jagannath Taniram Wani Age 50 years, Occ-Service R/o Deopur, Dhule, Tq. & Dist.Dhule. ..RESPONDENTS .... Shri V.D.Salunke. Advocate for petitioners. Shri N.N.Jadhav,AGP for State Shri P.R.Katneshwarkar,Adv.for R.4 to 6 Shri Lalitkumar Mahajan,Adv. for R. Respondents 8 to 18 deleted as per Court’s order dt.6/9/10. .... CORAM : R.M.BORDE,J. DATE : 6/09/2009 ORAL JUDGMENT : 1] Heard learned counsel for respective parties. Rule. Rule returnable forthwith. With consent of parties, Petitions are taken up for final disposal at admission stage. Leave to delete names of respondents 8 to 18 is granted. Names of respondents no.8 to 18 stand deleted. 14 2] The petitioners are taking exception to the order passed by Joint Chairty Commissioner, Nashik Region, Nashik on 8/4/2010 during continuance of the proceedings initiated by him under Section 41-A of the Bombay Public Trust Act thereby directing suspension of the managing trustees of the trust and directing appointment of the fit persons to administrate the affairs of the trust. The Joint Charity Commissioner passed another order on 5/8/2010 thereby appointing 3 persons i.e. respondents 4 to 6 herein as fit persons to administrate affairs of the trust during pendency of proceedings initiated under Section 41-A of the Act. Considering the nature of the proceedings contemplated by Section 41-A of the Act, the trust authorities should exercise utmost caution and be slow in passing interim orders in respect of directing suspension or removal of trustees during pendency of an enquiry into charges framed against trustees. 3] In the instant matter, it is brought to my notice that the Joint Charity Commissioner has already framed charges against the trustees and those are being inquired into. As has been held by this Court in the matter of Vijubhai Patel and another V/s The Charity Commissioner ,Maharashtra State and others reported in 1990(2) BCR 702 considering the nature of enquiry contemplated by provisions 15 of Section 41-A of the Act, Court observed that imputations reflecting on the integrity of the people have to be fortified by proof of high degree. Even if proceeding under section 41-D be not a criminal proceeding, the proof required to sustain charges therein must satisfy a higher standard than that normally required in cases governed by the rule of preponderance of probabilities. 4] It has been observed by learned Single Judge of this Court while dealing with matter between Mallikarjunappa S/o Sidramappa Bidve and others V/s Joint Charity Commissioner reported in 2008(1) Mh.L.J. 148 as under : “18] The legal position, which may be kept at back of the mind, is that removal of a trustee is a drastic action. The charge of malfeasance and/or misfeasance is serious one. The proceedings are of quasi civil and quasi criminal nature. Though the proceedings under section 41-D is not criminal proceeding as such, yet, proof required to sustain the charges is of high standard. The standard of proof in such proceedings is somewhat more than normally required in cases governed by preponderance of probabilities and somewhat less than 16 required in trials of criminal cases. The degree of proof required in criminal case is such that would prove criminal charge beyond a reasonable realm of doubt. The imputation reflecting on integrity of trustees have to be fortified by proof of high degree which would be somewhere in between standard of proof required in civil proceedings like a suit and criminal proceedings like a trial for offence of criminal breach of trust, or that of cheating. Thus, unless the lapse on part of the trustee is proved to be actuated by dishonesty or active connivance with other trustees, who are guilty of misfeasance or malfeasance, the drastic action under section 41-D of the BPT Act, may not be warranted. 19] The expression “misfeasance” as used in clause (c) of section 41-D would imply commission of breach of trust. It is more than mere negligence of the trustee to perform his duty. “Misfeasance” includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with act of misfeasance.” 5] Keeping in mind the observations made by this Court concerning the nature of enquiry contemplated by Section 41-A, I am of the 17 opinion that while passing an interim order, the Charity Commissioner should exercise extreme caution while issuing any order directing suspension or removal of trustees during pendency of enquiry under Section 41-A of the Act, and subject to an exception to the general and normal circumstances, such remedy shall not be resorted to unless situation warrants passing of such order. 6] In the instant matter, as has been recorded above, the Joint Charity Commissioner has directed framing of charges. One of the charges is in respect of disposal of the property belonging to the trust. I do not propose to go into the merits of the charges or the sufficiency of the material placed on record. The Joint Charity Commissioner before whom proceedings are pending, is expected to go into the charges and after recording evidence that would be led by the parties, to pass appropriate final order. The Joint Charity Commissioner after taking into consideration the observations made by this Court in the judgment cited supra would deal with the matter accordingly. The grievance made by petitioner in this petition is that their suspension and removal are unwarranted. A grievance is also made in respect of selection of fit persons i.e. respondents 2 to 6 herein for conducting the affairs of the trust during pendency of the proceedings. It is pointed out that respondent no.4 has an adverse interest and allegation in that 18 regard can be fortified by taking into consideration his participation and exhibition of interest by said person in purchase of the property, which was sought to be alienated by trustees. It is pointed out by respondent no.4 that he was ready to purchase the property for Rs.50 lakhs which was sought to be alienated by trustees of the trust. Apart from this aspect, it is pointed that the concerned trustee is related with functioning of another trustee and considering the aims and objects and the constitution of said trust, it can be inferred that the interest of the said respondent would be adverse to the interest of the trust being managed by the petitioners. The reference is also made to an application tendered by Advocate General under the provisions of Maharashtra Vexatious Litigation (Prevention) Act against respondent no.4. It is found that finally application was turned down. The fact however, remains that respondent no.4 was instrumental in conducting such activities which necessitated Advocate General to tender application against him. My attention is also invited to criminal proceedings in the form of S.T.C.Case No.4247/03, wherein respondent no.4 was an accused and one of the members of the trust was the complainant and the complaint was filed on behalf of one Dadasaheb Waman Vishnu Shinkar Nagari Patpeddhi Ltd. by one Shri Sanjay Vitthal Amrutkar and respondent no.4 has been held guilty for offence punishalbe under Section 138 of Negotiable Instruments Act 19 and he has been sentenced to suffer simple imprisonment till rising of Court. In these circumstances, therefore, respondent no.4 should not have been selected by Joint Charity Commissioner, to carry out the responsibility and for conducting affairs of the trust. It is contended that the membership of the trust consists of more than 340 members and Joint Charity Commissioner could have appointed some other person amongst members of the trust. My attention is invited to provisions of Section 47 of the Act and it is contended by petitioner that while making appointment from amongst the fit persons to conduct the affairs of the trust, the Joint Charity Commissioner shall have to keep in mind parameters laid down in sub Section 3 of Section 47. It is also contended that respondent no.5 and 6 also are not members of the trust and as such they should not be entrusted with the functions of the trust. Shri V.S.Salunke, learned counsel for petitioner in Writ Petition No.7258/10 has contended that about 25 persons who are connected with the trust, have expressed their willingness by tendering applications with the Joint Charity Commissioner, to conduct affairs of the trust during the intervening period. The Joint Charity Commissioner could have selected 3 persons amongst them to take care of the affairs of the trust during continuance of the proceedings under Section 41-D of the Act. However, the Joint Charity Commissioner without recording reasons, proceeded to appoint 20 respondent nos.4 to 6 as fit persons to look after affairs of the trust. The order appointing respondents 2 to 6 as fit persons to conduct affairs of the trust is liable to be quashed. 7] The Joint Charity Commissioner shall appoint 3 persons who shall be amongst members of the trust, to conduct affairs of the trust. The proceedings initiated under Section 41-D of the Act against petitioners and respondents 7 to 18 shall be decided in accordance with the provisions of law keeping in view the parameters laid down by this Court in the judgment cited supra, as expeditiously as possible within 6 months from today. In the mean time, the board of 3 trustees appointed for running administration of the trust during the pendency of the enquiry, is restrained from taking any major policy decision and they shall have to look after only day to day affairs of the trust. Rule made absolute in above terms. No order as to costs. [R.M.BORDE,J] umg/wp7256-10