1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1952 OF 2011 (Balkrishna s/o Mahadeji Hatwar vs. The Assistant Charity Commissioner, Bhandara and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri S.P. Kshirsagar, Advocate for the petitioner. Shri P.A. Gode, Advocate for the respondent no.2 ------- CORAM : R.M. SAVANT, J. DATED : AUGUST 3, 2011 The above petition takes exception to the order dated 1/12/2010 passed by the Assistant Charity Commissioner, Bhandara whereby the Application filed by the petitioner herein under Section 41-B of the Bombay Public Trusts Act, 1950 came to be rejected. The Application filed by the petitioner was that the three documents (Exhs. 79, 80 and 81) are forged and fabricated documents and that an 2 enquiry in respect of the same should be conducted and a criminal case should be filed against proponents of the said documents and that enquiry into the issue of membership, which has been conferred by virtue of the said three documents should be gone into. The said Application filed by the petitioner was disposed of on an earlier occasion by the Assistant Charity Commissioner by her order dated 22/4/2010, which had given rise to filing of Writ Petition No.3893/2010. The said writ petition came to be disposed of by a learned Single Judge of this Court by order dated 11/10/2010 and insofar as the present petition is concerned, the relevant extract of the said order is reproduced hereunder : “Whether the nature of document as forged or valid is already adjudicated upon or not is to be looked into by the Assistant Charity Commissioner. Similarly, even if it is presumed that the document is forged, being a quasi judicial authority, the Assistant Charity Commissioner himself has to record a finding in this respect and he cannot abdicate his essential quasi judicial function to his subordinate. The assistance of Inspector sought by him for said purpose, therefore, cannot be sustained. In view of this, I find that the impugned order dated 22.4.2010 improper and unsustainable. The same is 3 accordingly quashed and set aside. The application filed by respondent no.1 before the Assistant Charity Commissioner is restored back to his file for taking fresh decision in accordance with law, after hearing the respective Counsel.” On remand, the Assistant Charity Commissioner once again considered the said Application filed by the petitioner and as mentioned hereinabove, by the impugned order dated 1/12/2010 the said Application came to be rejected. Insofar as the issue of the said documents (Exhs. 79, 80 and 81) being fake and fabricated documents is concerned, the Assistant Charity Commissioner held that since a finding has been recorded in the earlier proceedings, i.e. in Appeal No.48/1995 wherein the Joint Charity Commissioner has held that there is no necessity to inspect the disputed signatures, which finding has been confirmed by the District Court, Bhandara in Miscellaneous Application No. 32/1997, the Assistant Charity Commissioner was of the view that the said issue cannot be re-opened at the behest of the 4 petitioner. Insofar as filing of the criminal case against proponent of the said three documents is concerned, i.e. respondent no.2 herein, the Assistant Charity Commissioner observed that the direction sought would not fall within the ambit of Section 41-B of the said Act and since an offence has already been registered, there is no warrant to issue direction of the kind sought by the petitioner. Insofar as the issue of membership is concerned, the Assistant Charity Commissioner held that since the petitioner has adequate remedies under the said Act in respect of the membership, the said issue need not be gone into and the petitioner would be free to adopt such remedies. It is sought to be contended by Shri Kshirsagar, learned Counsel for the petitioner, that this Court in its order dated 11/10/2010 had issued a mandate to the Assistant Charity Commissioner to record a finding in respect of adjudication of the said documents being false and fabricated and, therefore, the Assistant Charity 5 Commissioner could not have concluded the said enquiry by merely relying upon the orders passed by the Joint Charity Commissioner in Appeal No. 48/1995 and the learned District Judge in Miscellaneous Application No.32/1997. The learned Counsel would contend that the material that was placed before the Assistant Charity Commissioner was not before the Authorities at the time of the said proceedings. As regards the said contention of the learned Counsel for the petitioner, it is relevant to note that the mandate issued to the Assistant Charity Commissioner was to decide upon the said issue by taking into consideration the fact whether the issue was already adjudicated upon or not. The impugned order ex facie discloses that the Assistant Charity Commissioner has adjudicated upon the said issue and by adverting to the orders passed in Appeal No.48/1995 and Miscellaneous Application No.32/1997 has deemed it fit to conclude the enquiry as according to the Assistant Charity Commissioner the said issue has been concluded by the said two orders. 6 Insofar as other two aspects are concerned, in the light of the conspectus of facts as narrated hereinabove, the Assistant Charity Commissioner was right in refusing to issue the directions sought for by the petitioner. In my view, considering the mandate of Section 41-B of the said Act, the Assistant Charity Commissioner could not have issued the directions as sought by the petitioner. Having perused the impugned order dated 1/12/2010 passed by the Assistant Charity Commissioner and having regard to Section 41-B of the said Act, in my view, there is no illegality or infirmity or failure to exercise jurisdiction on the part of the Assistant Charity Commissioner. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. In the event the issue of the said documents being fake and forged arises for consideration in the subsequent change report proceedings, it would be open for the petitioner to urge the contentions that are raised in the present petition and the concerned Authority to deal with the 7 said issue in accordance with law, undeterred by the instant order. JUDGE khj