1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Letters Patent Appeal No.204 Of 2010 In Writ Petition No.3708 Of 2010 Bapu S/o Anantrao Sonji .. Appellant. Versus Kishor Kalyanrao Gangane & Others. .. Respondents. -------- Shri. S.S. Jadhavar Advocate for appellant. Shri. V.D. Salunke, Advocate for respondent No.1. Shri. P.V. Mandlik, Senior Counsel, holding for Shri. Amol Gandhi, for respondent No.3. Shri. V.D. Rakh, Assistant Government Pleader, for respondent No.10. -------- CORAM: NARESH H PATIL & K.K. TATED, JJ. DATE: 30th AUGUST 2010 2 PER COURT : 1) Heard. 2) The appellant challenges the order dated 7th July 2010 passed by the learned Single Judge in Writ Petition No.3708 of 2010. The appellant had raised challenge in Writ Petition No.3708 of 2010 to the judgment and order dated 20th April 2010 passed by the Joint Charity Commissioner, Latur Region Latur in Application No.3 of 2010 with the following prayer clauses. “(B) By issuing writ of certiorari or any other appropriate writ, order or direction, the judgment and order dated 20-4-2010 passed by the Joint Charity Commissioner, Latur Division, Latur, in Application No.3/2010, may kindly be quashed and set aside. (C) By issuing writ of mandamus or any other appropriate writ, order or direction, the respondent 3 Nos.3 to 7 may kindly be directed to unseal the “Sinhasan Peti’ and handover the same to the petitioner. (D) By issuing writ of mandamus or any other appropriate writ, order or direction, the respondent Nos.3 to 7 may kindly be directed to handover collections from ‘Sinhasan Peti’ to the petitioner, which are collected by them and deposited in the bank, in view of the interim order dated 18/03/2010 passed by the Joint Charity Commissioner, Latur Division, Latur below Exh.1 in Application No.3/2010 and further collection from 20/04/2010.” 3) The learned counsel for the appellant submitted that he participated in the process of auction of “Sinhasan Peti” for a period of one year ending on 18th September 2010. His tender was accepted for an amount of Rs.2,30,00,000/-. The appellant deposited the amount in installments and started collecting 4 donations and offerings offered by the devotees which were put in the Sinhasan Peti. The respondent no.1 and one more person had filed an application before the Joint Charity Commissioner, Latur Region, Latur. By an interim order dated 18th March 2010 the Joint Charity Commissioner Latur Region Latur directed to seal the Sinhasan Peti (Donation Box). The Joint Charity Commissioner had issued certain directions in respect of collection of donations in cash and kind and for accounting of the receipt of the donations by the devotees. By a judgment and order dated dated 20-4-2010 the Joint Charity Commissioner allowed the application and directed the respondent Nos.2 to 6 to cancel the contract executed between Mandir Trust and the appellant. The Joint Charity 5 Commissioner further issued certain directions. 4) The learned counsel appearing for the appellant in substance submitted that the application before the Joint Charity Commissioner was not maintainable as the Mandir Trust was administered by the State Government's authorities. The appellant executed a contract on stamp paper and accordingly had started operating and collecting donations offered by the devotees from the Sinhasan Petis. For a period of near about six months it was collected and thereafter under the orders passed by the Joint Charity Commissioner and later on under the orders passed by the Manager (Administration) of the Shri. Tuljabhavani Mandir Trust dated 3-6-2010 it 6 was communicated to the appellant that the contract executed between the Trust and the appellant was cancelled in view of the orders passed by the Joint Charity Commissioner dated 20-4-2010 and in view of violation of the conditions Nos.5,10,11, 12,14 and 15. It was further intimated that the offerings collected from 19th March 2009 has been seized / confiscated by the Trust along with the tender amount deposited by the appellant with the Trust. 5) The learned counsel submitted that the appellant is not concerned with the internal conflict in respect of the management of the Trust. The issues in respect of allegations made regarding the manner in which the tender of Sinhasan Peti was issued earlier and the past history, in 7 that regard, the counsel submitted that the appellant’s only anxiety is that he was a successful bidder and his tender was accepted and under the orders passed by the Joint Charity Commissioner abruptly his right to receive donation was stopped and thereafter taking clues from the proceedings initiated and pending before the Courts, the management of the Trust issued further show cause notice and thereafter finally cancelled the contract of the appellant even on other grounds which are not acceptable to the appellant. While summing up the arguments the learned counsel submitted that his tender period is coming to an end just after few days from today. Therefore, he does not want to remain a party to the internal disputes and allegations in respect of management of the 8 Trust. In the facts of the case the counsel suggested that the appellant at this stage would be satisfied if the amount for remaining period for which he has been disallowed from collecting donations is refunded to him. Shri. Jadhavar, counsel for the appellant further submitted that the original complainant has suppressed the fact of filing of Writ Petition No.3819 of 2006 from the Joint Charity Commissioner. 6) The learned Senior Counsel Shri. Pravin Mandlik appearing for respondent No. 3 submitted that there were serious allegations made in the application in respect of the manner and method in which the “Sinhasan Petis” were being operated. The Trust was keen to have a fair and transparent system in respect of receipt of 9 donations and offerings. Considering the growth in number of devotees the Trust was also keen that fair and transparent system prevails. After the order passed by the Joint Charity Commissioner the Trust operated the offering of the donations which were put in the "Sinhasan Petis" and it was noticed that the devotees had donated cash and valuables wroth rupees one lakh per day. The counsel submitted that after noticing all these facts the Mandir Trust issued notice to the appellant, replies were filed and by communication dated 3-6-2010 the contract was cancelled not only on the ground of order passed by the Joint Charity Commissioner but even on the ground of violation of condition Nos. 5,10,11,14,15. 10 7) The learned Senor Counsel submitted that in the facts of the case the learned Single Judge had exercised jurisdiction under Article 227 of the Constitution, therefore, the LPA is not maintainable. Reliance is placed on reported judgment in Jagannath v. Gulabrao, 1965 Mh.L.J.426. The counsel submitted that as the appellant had violated the conditions the Trust was entitled to cancel the contract in accordance with the clauses of the contract executed by the parties. The learned counsel further submitted that there is no error or perversity in the order passed by the learned Single Judge. In fact the appellant is asking for execution of his contract in these proceedings which has been cancelled and the appellant has other remedies for the said purpose. 11 8) The learned counsel Shri. V.D. Salunke appearing for respondent No.1, one of the original applicants, submitted that in the facts of the case the tender period itself is coming to an end very shortly. The counsel submitted that in view of the fact that the contract of the appellant was cancelled on both counts i.e. in the view of the judgment delivered by the Joint Charity Commissioner and in view of violation of the conditions of contract, the appellant is not entitled to seek relief from this Court as the same would be in the realm of matters relating to contractual relationship between the parties. The counsel submitted that though the applicant did not mention about filing of Writ Petition No.3819 of 2006 the same would not dis-entitle the applicant to file 12 application under Sections 41A and 41E of the Bombay Public Trusts Act which is a statutory remedy available to the appellant. 9) We have perused the orders passed by the Joint Charity Commissioner and the learned Single Judge. We had called the proceedings of Writ Petition No.3819 of 2006. We have perused the same. We find that the appellant is aggrieved by the order passed by the Mandir Trust in relation to cancellation of the contract of the appellant not only on the ground of the judgment and order passed by the Joint Charity Commissioner dated 20-4-2010 but even on the ground of violation of clauses of the contract executed between the parties. While dealing with the issues, the 13 learned Single Judge had clearly observed that the grievance of the appellant would amount to breach of term of his contract for which he could not seek public law remedy by filing writ petition when violation of private right is alleged. It was further observed that the petition involved disputed questions of facts. 10) Needless to mention that the appellant was a successful bidder in the tender process and in that capacity he had challenged the order passed by the Joint Charity Commissioner. The cause of action for the appellant, in clear terms, is cancellation of his contrct on two grounds – firstly, the order passed by the Joint Charity Commissioner and secondly, in respect of violation of terms of contract 14 noticed by the managing committee of the Trust. Challenge to the order made by the appellant was considered from that angle. It is also clarified by the learned counsel that the appellant is noway concern in respect of internal disputes, if any, in the operation of the trust management or the allegations of any nature in respect of conducting the affairs of the Trust. Therefore, the matter was accordingly considered. 11) Considering the facts of the case and the stand adopted by the contesting parties, we do not find that interference is called for in the order passed by the learned Single Judge. We do not notice any perversity or serious error in the order. 15 12) The Letters Patent Appeal is, therefore, dismissed. 13) The learned counsel for the appellant, at this stage, submitted that he be granted liberty to resort to alternate remedy to challenge the cancellation of his contract. We clarify that, except the subject matter of the writ petition and the appeal, the appellant may resort to alternate remedies as permissible inlaw in respect of challenge to the cancellation of the contract. Sd/- Sd/- (K.K. TATED, J.) (NARESH H PATIL, J.) rsl/ lpa.204.10