1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3403 OF 2009 Manik S/o Yeshwant Tigade .... PETITIONER V E R S U S The Assistant Charity Commissioner, Osmanabad and others. .... RESPONDENTS Mr. S.J.Salunke holding for Mr. V.D.Salunke, Counsel for Petitioner. Mr. N.H.Borade, A.G.P. for State. .................... [ CORAM : K.K.TATED, J. ] DATE : 03/08/2009 PER COURT : 1. Rule. Rule returnable forthwith. 2 2. Heard Mr. S.J.Salunke holding for Mr. V.D.Salunke, learned counsel appearing on behalf of petitioner and Mr. N.H. Borade, learned A.G.P. for State. Though the respondent nos. 2 to 4 are served, no one appeared on their behalf. 3. By this petition under Article 227 of the Constitution of India, Petitioner is challenging the Order dated 25/03/2009 passed by the Assistant Charity Commissioner, Osmanabad below application Enquiry No. 919 of 2006 under Section 41-A of the Bombay Public Trust Act, 1950. The learned counsel appearing on behalf of petitioner submits that by virtue of Order dated 25/3/2009, though the petitioners are elected body in general body meeting dated 24/8/2008 of Lok Wachanalaya Trust bearing Registration No. E-13 (Osmanabad), they were restrained from day to day administrative work of the Trust. Learned counsel relied on authority in the matter of Asaram Bhimrao Shinde and others V/s State of Maharashtra and others reported in 2001 (4) Mh. L.J. 548. In this authority, the High Court held that the Charity Commissioner in exercise of power under Section 41-A could not issue direction for proper administration of Trust and also he could not appoint Committee for the administration of the Trust. Paragraph nos. 8 and 11 of this authority 3 reads as under : “ 8. Apparently, therefore, section 41A deals with the power of the Commissioner to issue directions for proper administration of the trust. The phraseology used in the said section nowhere discloses any power being given to the Commissioner to appoint any committee for the purpose of administration of the trust. On the contrary, it speaks about directions to any trustee of the trust, or person connected therewith to ensure that the trust is properly administered. It does not speak of appointment of the persons for administration of the trust but, on the contrary, to take steps to ensure that the persons who are in the administration of the trust act in the interests of the trust and diligently for the fulfillment of the objects and purpose of the trust. In fact, the power, regarding suspension, removal and dismissal of trustees from the management of the trust is given to the Charity Commissioner under 4 different provision i.e. under Section 41D. 11. The learned Single Judge in Nathumal Kisanlalji’s case while considering the scope of section 41 A has held that the underlying idea of section 41A of the Act is that those directions should relate only to (a) proper administration of the public trust; or (b) for proper accounting of its income, or (c) for appropriate application of the income to the objects of the said trust. It has also been observed therein that there can be no question of any controversy or dispute while dealing with the matter under section 41A of rules of application of principle of natural justice. Undoubtedly the directions which can be issued under section 41A, therefore, are of administrative nature and they can not relate to any quasi-judicial powers of the Charity Commissioner. Quasi-judicial proceedings would certainly require adherence to principles of natural justice while exercising such powers. As already observed above, section 41A speaks 5 about only directions to be issued to the trustees or persons connected with the trust for proper administration of the trust and for diligent performance of their duties by the trustee for attaining the objects and purpose for which the trust is established. It does not empower the Commissioner to remove or appoint any new committee for the administration of the trust. Such powers are specifically bestowed upon the authority under section 41D. ” 3. It is crystal clear from the Order dated 25/3/2009 that the Assistant Charity Commissioner appointed present Respondent nos. 2 to 4 to operate Bank account and administer the said Trust. It is admitted fact that present petitioner was elected member in general body meeting held on 24/8/2008. 4. Considering the reported Judgment of this Court and the Order passed by the Assistant Charity Commissioner dated 25/3/2009, the Writ Petition is allowed in terms of prayer clause ‘ C ’, which reads as under : 6 “ To issue writ of certiorari or any other appropriate writ, direction or order in like nature, the Judgment and order dated 25/3/2009 passed by the Ld. Assistant Charity Commissioner, Osmanabad in Enquiry No. 914/2008 may kindly be quashed and set aside.” 5. Leave to amend prayer clause ‘ C ’ and ‘ D ’ forthwith. Petition disposed of accordingly. [ K.K. TATED ] JUDGE knp/WP3403.09 7 8 9 10 11 12 13 14