1 fa31-11-j. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.31 OF 2011 ALONGWITH CIVIL APPLICATION NO.29 OF 2011 Sidheshwar Shikshan Prasarak Mandal & Anr. .. Appellants V/s. Somshekhar Songappa Birajdar & Ors. .. Respondents ..... Mr. N. P. Shimpi for the appellants. Mr. I. M. Khairdi for respondent Nos. 1 to 3. ..... CORAM : A. S. OKA, J. DATE : MARCH 31, 2011. ORAL JUDGMENT :- Heard the learned counsel appearing for the appellants and the learned counsel appearing for the first to third respondent. The fourth respondent is a formal party. Taken up for final hearing. 2. On application made by first to third respondents purporting to be an application under Section 47 of the Bombay Public Trusts Act, 1950, the impugned order dated 6th December, 2010, has been 2 fa31-11-j. passed by which the second appellant, first to third respondents and a representative of the Assistant Charity Commissioner, Solapur have been appointed as fit persons to administer the Trust till the disposal of the Misc. application No.254 of 2009 which is pending in the District Court. Apart from submissions on merit, the learned counsel appearing for the appellants pointed out that the application on which the impugned order has been passed was filed before the joint Charity Commissioner at Latur. But without notice to the appellants, the said application was taken up for hearing by the learned Joint Charity Commissioner at Aurangabad who was holding the charge of the post of Joint Charity Commissioner, Latur. His submission was that when this application was taken up for hearing at Aurangabad, prior notice ought to have been served to the appellants. He submitted that even otherwise the impugned order is illegal. 3. The learned counsel appearing for the first to third respondents supported the impugned order by inviting attention of the Court to the averments made in the affidavit in reply to the Civil Application and Annextures thereto. He submitted that the committee of fit persons appointed under the impugned order has already taken over 3 fa31-11-j. charge and has already started functioning. He submitted that as a result of stay granted in Misc. Civil Application No.254 of 2009, there is no managing committee in existence and hence the application was required to be filed by the respondents as the first appellant was alone managing the affairs of the trust. 4. I have given careful consideration to the submissions. I have perused the Roznama of the proceedings. Perusal of the Roznama of the proceedings shows that the post of the learned Joint Charity Commissioner Latur was vacant. As the said post was vacant, it appears that the application filed by the first to third respondents was taken up for hearing by the learned Joint Charity Commissioner at Aurangabad who was holding the charge of the post of Joint Charity Commissioner, Latur. Notice ought to have been given to the appellants of the fact that the application was being taken up for final hearing by Joint Charity Commissioner at Aurangabad. Roznama does not show that any such notice was served to the appellants. Therefore, the appellants remained absent. Thus, only on this ground, the impugned order will have to be set aside. 4 fa31-11-j. 5. Perusal of the affidavit in reply filed by the first to third respondents and documents annexed thereto show that the committee of fit persons appointed under the impugned order has already started managing the first appellant Trust and in fact, an entry of the names of the fit persons has been already made in the schedule of the Trust. 6. Though, the impugned order will have to be set aside, and the application will have to be directed to be heard afresh, the appointment of a fit persons made will have to be continued as an interim arrangement during the pendency of the application. There are adequate safeguards provided in the impugned order by directing that the committee of fit persons will only look after the day to day affairs of the Trust and that they will not take any major policy decisions. In fact, there is a direction that the Assistant Charity Commissioner, Solapur will look after day to day affairs of the trust with the help of the fit persons. In the larger interests of the public Trust, the arrangement made under the impugned order will have to be continued as interim arrangement pending the hearing of the application made by the first to third respondents. The learned 5 fa31-11-j. counsel appearing for the parties states that the post of the learned Joint Charity Commissioner, Latur is still vacant. If the said post is not yet filled in, the officer holding charge of the said post after giving notice to the parties of the date fixed will have to hear the application. 7. The second appellant has tendered affidavit dated 7th March, 2011. The apology tendered in the said affidavit is accepted and he is permitted to delete ground “K” of the Memorandum of Appeal by carrying out necessary amendment. 8. Hence, I pass the following order : :: O R D E R :: i. The impugned order dated 6th December, 2010 is quashed and set aside and Misc. Application No. 4 of 2010, is restored to the file of the learned Joint Charity Commissioner at Latur. ii. The appointment of the fit persons made under 6 fa31-11-j. the impugned order dated 6th December, 2010 will continue as interim arrangement till the disposal of the said application. The appointment shall continue subject to directions contend in the impugned order dated 6th December, 2010. iii. As the post of the learned Joint Charity Commissioner, Latur is vacant, the parties are directed to appear before the learned Joint Charity Commissioner at Aurangabad on 9th May, 2011 at 11.00 a.m. only for fixing the schedule of hearing. The learned Joint Charity Commissioner will fix the schedule of hearing on that date. iv. The Misc. Application bearing No.4 of 2010 shall be decided afresh by the learned Joint Charity Commissioner as expeditiously as possible and preferably on or before 29th July, 2011. v. All contentions of the parties on merits on the 7 fa31-11-j. said application are kept open. vi. It will be open for the appellants to file a reply to the said application on 9th May, 2011. vii. Civil Application No.29 of 2011 does not survive and the same is disposed of. viii. Appeal is partly allowed on the above terms. ix. The learned Joint Charity Commissioner will act on an authenticated copy of the said order. JUDGE