1 wp3919.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3919 OF 2010 1 Kisan Balasaheb Dhore 2 Baburao Abaji Waikar 3 Ashok Bhagawanrao Dhore 4 Pradeep Marutrao Dhore 5 Balasaheb Kisanrao Dhore 6 Tukaram Dynoba Dhore 7 Subhash Raghunath Jadhav 8 Rajendra Vitthalrao Kude 9 Balasaheb Shakarro Mhalaskar 10 Vijay Dalichand Surana 11 Sunil @ Raju Raghunath Jadhav ...Petitioners vs. 1 Sopanrao Baburao Mhalaskar 2 Popatrao alias Maruti Sahadu Dhore 3 Babanrao Govind Mhalaskar 4 Pandharinath Jayram Bhilare 5 Arvind Purushottam Pingle 6 Narayan Maruti Dhore 7 Rajnish @ Bapu Bhaskarrao Dhore 8 Ratnakar Ramchandra Bhavare 9 Nandkumar Marutrao Chavan 10 Ramdas Damu Karale 11 Ananta Balasaheb Kude 12 Assistant Charity Commissioner Pune Region,Pune ...Respondents Mr.P.B.Shah for the petitioners Mr.Onkar Warange for the respondent nos.1 to 11 Mr.Suresh Bhosale, A.G.P for respondent no.12 CORAM :A.S.OKA,J. DATE OF HEARING LAST ARGUMENT : OCTOBER 28, 2010 DATE OF PRONOUNCEMENT OF JUDGMENT:NOVEMBER 15,2010 JUDGMENT : 1 By this Writ Petition under Article 227 of the Constitution of India, the petitioners have taken an exception to the order dated 11 th January 2010 passed by 2 wp3919.sxw the learned Assistant Charity Commissioner, Pune Region, Pune. An application being an application no.85 of 2008 was filed by the first respondent before the learned Assistant Charity Commissioner, Pune praying for appointment of a new board of trustees of the trust known as Shri Potoba, Mahadev, Maruti and Datta Devsthan , Vadgaon, Maval which is a public trust duly registered under the Bombay Public Trusts Act,1950 (hereinafter referred to as the said Act). By Judgment and order dated 15 th September 1976 passed by the Deputy Charity Commissioner, Bombay, a scheme for management and administration of the said trust was framed. The 11 persons named in the clause 8 of the scheme were appointed as trustees of the trust for the period of 7 years. The mode of appointment of the trustees has been provided in clause 7 of the scheme. The qualification of the persons who can be appointed as trustees has been laid down in clause 9 of the scheme. In the application made by the first respondent, it was contended that after expiry of the tenure of the trustees who were provisionally appointed, new trustees were not appointed. It appears that the proceedings of the application no.85 of 2008 could not be traced out, the first respondent filed another application being Misc.application no.3 of 2009 for the same relief. Both the applications have been disposed of by the impugned order. 2 The impugned order notes that a notice was affixed on the temple premises as well as the premises of the Gram Panchayat calling upon the members of the public to submit applications for being appointed as trustees of the said trust. Impugned order further notes that 16 applications were received. By the impugned order the 1st to 11 th respondents were appointed as the trustees. 3 wp3919.sxw 3 The learned counsel for the petitioners submitted that notice as directed by the learned Assistant Charity Commissioner was not affixed at the premises Gram Panchayat, temple premises and village chavdi. He submitted that the signatures of the alleged panch witness were obtained on the alleged panchanama recording publication of the notice by practicing fraud and mis- representation. He has placed reliance on the affidavits of the various persons in which it is stated that their signatures were obtained by practicing mis- representation. He pointed out that in the affidavit of one Hanumant. B. Mhalaskar (third respondent herein) which was affirmed on 11 th June 2010, he has stated that he never intended to apply for appointment as trustee and his signatures on the application and consent letter were taken by practicing mis-representation. He submitted that there is a complete non application of mind by the learned Assistant Charity Commissioner in as much as no reasons have been assigned as to why the concerned respondents were appointed as the trustees. He submitted that the fitness of the said respondents has not been ascertained and therefore, the impugned order has been vitiated. The learned counsel for the 1 st to 11 th respondents submitted that the affidavit of the third respondent produced by the petitioner is fabricated and accordingly, he has tendered an affidavit of the third respondent affirmed before a Notary Public. He submitted that the affidavit of one Anil Sutar relied upon by the petitioners is fabricated. He tendered an affidavit dated 12 th October 2010 affirmed by the said Anil Sutar in that behalf. The learned counsel submitted that the Assistant Charity Commissioner followed the requisite procedure and ultimately the applications of only 1 st to 11 th respondents survived before the learned Assistant Charity Commissioner and therefore, the said respondents have 4 wp3919.sxw been rightly appointed. He submitted that the said respondents are devotees of the deity and are residents of the locality in which the temple is situated. He therefore, submitted that no interference is called for with the discretionary order passed by the learned Assistant Charity Commissioner. 4 I have given careful consideration to the submissions. Perused the order dated 15 th September 1976 passed by the learned Deputy Charity Commissioner by which a scheme for management of the said trust was framed. Clause 7 of the scheme provides that after expiry of stipulated period of 7 years of tenure of board of trustees, the Assistant Charity Commissioner will make appointment of new trustees. Before appointing new trustees, the Assistant Charity Commissioner shall visit the premises of the trust and will give hearing to the outgoing trustees. Clause 7 further provides that appropriate enquiry shall be made by the learned Assistant Charity Commissioner of the persons to be appointed as new trustees. Sub clause (a) of clause 9 of the scheme provides that person to be appointed as trustee must be an adult and must be ordinary resident of the locality. It is also provided that such person must be a devotee of the deity. 5 Thus, before appointing new board of trustees, the Assistant Charity Commissioner has to hold an enquiry. The basic qualifications have been laid down by the scheme. The basic qualification is that the person concerned should be an adult and ordinary resident of the locality. Another necessary requirement is that he has to be a devotee of the deity. When any person is sought to be appointed as a trustee of a public charitable trust, it is implicit that he or she has to be otherwise 5 wp3919.sxw fit to be appointed as a trustee. Before appointing any person as a trustee of the public charitable trust, the Assistant Charitable Commissioner has to make an enquiry regarding antecedents of such person. It is obvious that if a person has a criminal background or if he is otherwise not fit for appointment as a trustee of a public charitable trust, he cannot be appointed even though he may possess basic qualifications provided in the scheme. 6 The learned Assistant Charity Commissioner in the impugned order noted that out of the 16 applications received, only 11 persons appeared before him and showed willingness to work as trustees. The Assistant Charity Commissioner has noted in the order that said persons submitted that they are devotees of the deity and have been residing in the vicinity. The order does not record that the said persons are fit and proper persons to be appointed as trustees. The order does not reflect that the learned Assistant Charity Commissioner has made any enquiry regarding the fitness of 1 st to 11 th respondents to act as trustees. What is considered by the Assistant Charity Commissioner is the fact that there are only 11 applicants and that all of them were ordinary residents of the locality and were devotees of the deity. Going by the impugned order, there was no proper enquiry held by the Assistant Charity Commissioner to ascertain the fitness of the persons. Even assuming that there were only 11 applications received to fill up the 11 posts of trustees, the Assistant Charity Commissioner could have appointed only those applicants out of 11 who were eligible as per the scheme and who were otherwise fit persons. All 11 applicants could not have been appointed as trustees without holding inquiry regarding their fitness. In the circumstances, the impugned order will 6 wp3919.sxw have to be quashed and set aside only on this ground and an order of remand will have to be passed. 7 There is controversy as to whether the notice was properly affixed inviting applications for the posts of trustees. However, it is not necessary to go into that controversy in view of the fact that the order of remand will have to be passed. To avoid any controversy, the Assistant Charity Commissioner shall issue fresh notice inviting applications for appointment to the post of trustees. The copies of the notice shall be affixed on the notice board of the office of the concerned local Gram Panchayat. The copies of the notice shall also be affixed on the conspicuous parts of the village chavadi; if any, as well as the temple. The work of affixing the copies of notice shall be entrusted either to the Inspector working in the office of the trust or any other member of the staff. The work of affixing notice shall be done in presence of the concerned Gram Sevak of the village panchayat and/or another person who should be preferably an employee of the village panchayat, the concerned Panchayat Samitee or the concerned Zilla Parishad. It is obvious that apart from 1 st to 11 th respondents, other eligible persons including who had applied earlier will be entitled to apply. Till the inquiry is held and new board of trustees is appointed, the 1 st to 11 th respondents shall act as ad-hoc board of trustees. 8 Hence, I pass the following order : i) The impugned Judgment and order dated 11 th January 2010 is quashed and set aside and Misc. application nos.85 of 2008 and 3 of 2009 are restored to the file of the learned Assistant Charity Commissioner. 7 wp3919.sxw ii)The learned Assistant Charity Commissioner shall issue a fresh notice inviting applications from the eligible persons for appointment to the post of the trustees of the said trust. Notice shall be affixed on notice board of the local village panchayat. The copies of the notice shall be affixed at conspicuous parts of the village chavadi, if any, as well as the temple. iii)The work of affixing notice shall be entrusted either to the Inspector in the office of the learned Assistant Charity Commissioner or to any other employee in the said office. The work of affixing notices shall be carried out in presence of the concerned Gram Sevak and/or any person who shall be preferably an employee of the village panchayat or concerned Panchayat Samitee or concerned Zilla Parishad. iv)It is made clear that all the eligible persons including those who had applied earlier shall be entitled to again apply seeking appointment as trustees. v) Before appointing any person as trustee, the learned Assistant Charity Commissioner shall give an opportunity of being heard to the outgoing trustees. The learned Assistant Charity Commissioner will also hold an enquiry for ascertaining whether the applicants are eligible as per the scheme and whether they are otherwise fit persons to be appointed as trustees of the said trust. vi)The process of appointment of new board of trustees shall be preferably completed by the learned Assistant Charity Commissioner on or before 31 st March 2011. vii) Till the new board of trustees is appointed, 1 st to 11 th respondents shall continue to act as 8 wp3919.sxw trustees. However, they shall not take any major policy decisions without prior approval of the learned Assistant Charity Commissioner. viii)Writ Petition is disposed of on above terms with no order as to costs. ix)The parties and the learned Assistant Charity Commissioner shall act upon an authenticated copy of this order. JUDGE