1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9110 OF 2007 Narsingh Shikshan Prasarak Mandal & Ors. .. Petitioners Versus Vitthal M. Jadhav .. Respondents Mr.S.S.Patwardhan for petitioners Mr.P.S.Dani for respondent Nos. 1 and 2 Mr.Amit Borkar for respondent Nos. 3 to 5 Ms.P.S.Cardozo, A.G.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 21st February 2008 P.C. . Petitioners are aggrieved and dis-satisfied by the order passed by the Dy.Charity Commissioner, Kolhapur on 5th November 2007. By the order under challenge the Dy.Charity Commissioner directed as under:- "1. In exercise of the powers vested 2 in me under section 41A of B.P.T. Act, 1950 I, I/c.Deputy Charity Commissioner, Kolhapur do hereby appointing following persons to look after the management of the trust viz., 1. Ashok Tukaram Ganmale 2. Vitthal Mhadev Jadhav 3. Ganpati Appanna Chavan "2. These persons are hereby directed to look after the management of the trust in accordance with the constitution of the Trust, as per law, till the final decision of all abovesaid change reports pending before this authority." 2. The Dy.Charity Commissioner has purported to exercise powers under section 41-A and appointed the above mentioned persons to look 3 after the management of the Trust. 3. The grievance of the petitioners is that they are Trustees of the first petitioner Trust whereas respondent No.1 to 5 are not concerned with the Trust at all. The contesting respondents are trying to obstructed working of the Trust. They claim to be Trustees of the first petitioner Trust and approached the respondent No.6 by filing an application bearing No.610 of 2003. Several reliefs were claimed in that application including that respondent nos. 1 to 5 should be invited for the meeting of the Trust. That application was partly allowed on 26th December 2003 and the respondent No.6 directed the petitioners to invite respondent Nos. 3 to 5 for the meeting. 4. That order was challenged by the petitioners by filing Writ petition bearing W.P.No.1683 of 2004. The order of the Dy.Charity 4 Commissioner has been set aside by this Court on 9th July 2004. That was by consent of the respondents to that petition. This Court directed that the change report should be gone into and enquired and disposed of in accordance with law. This Court had specifically stated that the order on the change report would be subject to the further remedies available in law. 5. Despite this position, the fresh application was filed being Application No.909 of 2007. Respondent Nos. 1 and 2 have filed this application but did not implead present petitioners as parties thereto. They have made respondent Nos. 3 and 5 to this petition as respondents to this application. It is urged that the application moved is in clear collusion inasmuch as, respondent Nos. 1 and 2 to this petition who impleaded respondent Nos. 3 to 5 to the application as respondents appeared suo motu and submitted written reply. Respondent No.6 is 5 Dy.Charity Commissioner who was on leave on that date. The temporary charge was handed over to Dy.Charity Commissioner, Sangli. He took up the application and immediately passed an order without any notice to the petitioners. 6. Mr.Dani appearing for respondent Nos. 1 and 2 supported the impugned order by pointing out that there are two fractions in the first petitioner Trust and the change report proceedings have gained finality. While it is true that the appeal may be pending, yet, the change which has been notified by the petitioners has not been accepted. In such circumstances, the P.T.R. Registrar does not show their names as Trustees. The existing entries in the register would show that the respondent Nos. 3 to 5 are Trustees and, therefore, only they have been impleaded. That apart, according to him, even if the impugned order is set aside that would create vacuum in the working of the Trust. 6 That vacuum was never intended by an order passed by a Court exercising writ jurisdiction. In other words, according to Mr.Dani, the order being set aside should not revive something which is expressly prohibited in law. Until and unless change report proceedings attain finality, there is no question of petitioners stepping in and managing the affairs. In such circumstances, this Court should not interfere with the impugned order. Assuming it so interferes, it should allow the existing board of trustees/administrators to function till the application under section 41A is heard afresh in accordance with law. 7. I am unable to accept either of the submissions of Mr.Dani. This is not a case where this Court while correcting an illegality would be creating or perpetuating another. On the face of the record, the Dy.Charity Commissioner had proceeded in undue haste and completely ignoring 7 the fact that the proceedings are hotly contested between the petitioners on one hand and respondent Nos. 3 to 5 on the other. It has been brought to my notice that the change report may have been rejected by the Dy.Charity Commissioner. Mr.Patwardhan brings to my notice the order dated 28th February 2007 passed by the Charity Commissioner in Appeal No.22 of 2006 where the Joint Charity Commissioner, Kolhapur has allowed the appeal and quashed and set aside the order of the Dy.Charity Commissioner in change report No.820 of 2003 dated 20th June 2006. 8. Mr.Dani would submit that an appeal therefrom is pending before the Dist.Court and the order has been stayed. To my mind, all these are matters which ought to have been present to the mind of Dy.Charity Commissioner. Far from noticing them, he has virtually ignored and brushed them aside. I fail to understand as to 8 what was the necessity of taking up the application on urgent basis and passing the impugned order. The Dy.Charity Commissioner at Sangli was temporarily functioning as Dy.Charity Commissioner at Kolhapur. He could not have assumed jurisdiction to himself and decided something finally in such circumstances. Unless grave urgency was pointed out and the intervention sought so as to correct something which requires to be interfered with on urgent basis, he ought not to have proceeded with the matter in undue haste by ignoring the relevant material so also without issuing any notice to the petitioners, superseding them and replacing them by Board of Administrators. The application under section 41A was filed and it is not as if the averments in the application warranted his immediate interference. 9. For all these reasons, I find that the Dy.Charity Commissioner has assumed jurisdiction 9 in the present case without the same being conferred upon him and decided something finally, which ought not to have been done in the facts of this case. Assuming that he was authorised to dispose of the application finally, yet, the Dy.Charity Commissioner has failed to apply his mind to all the facts that are placed before him and more so, by ignoring the order of the Jt.Charity Commissioner. All this could not have been brought to his notice and indeed was not brought to his notice by respondent Nos. 3 to 5. Since the petitioners were not impleaded, this material could not have been placed before him. There is no reference to either the earlier proceedings or the orders of this Court nor to the appellate order of the Joint Charity Commissioner dated 28th February 2007 referred to above. In such circumstances, the impugned order is ex facie bad in law, null and void being passed without the petitioners and the Trust being before the Dy.Charity Commissioner. Such 10 an order is no order in the eyes of law and cannot be implemented, even if the same has been acted upon, as urged by Mr.Dani. The consequences of the same being supersession of the Trustees and replacing them by some persons, about whose status, there is serious dispute, is enough to reject the submissions of Mr.Dani. In my view the manner in which the Dy.Charity Commissioner has gone with the matter and passed the impugned order, shows that he allowed his office to be usurped by persons who had apparently colluded with each other. The Dy.Charity Commissioner is not meant to assist the parties in taking over the Trust in such manner. He has to act independently. 10. In such circumstances, there is substance in the contention that the order is also vitiated by apparent collusion and is virtually a fraud on the power conferred by section 41A of the Bombay Public Trust Act. 11 11. For the aforesaid reasons, petition is allowed. Impugned order dated 5th November 2007 is quashed and set aside. Application No.909 of 2007 is restored to the file of Dy.Charity Commissioner, Kolhapur who alone shall decide the same on merits and in accordance with law only after petitioners are made party thereto and given adequate notice and opportunity of hearing. 12. Mr.Dani states that respondent Nos. 1 and 2 would implead present petitioners as parties to the application No.909 of 2007 within a period of one week from today and serve a copy of the said application on petitioners - newly added respondents within a period of ten days thereafter. If all this is complied with as stated by Mr.Dani, then parties to appear before the Dy.Charity Commissioner on 24th March 2008 and thereafter he shall proceed in accordance with law. 12 13. Petition disposed of accordingly. No costs. All concerned to act on authenticated copy of this order. (S.C.Dharmadhikari, J)