: 1 : wp.4048.2011.sxw vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4048 OF 2011 Nilima Vasant Pawar & Anr. ... Petitioners V/s. Ashok Yashwantrao More & Ors. ... Respondents Mr.V.A. Thorat, Sr. Advocate with Mr.P.B. Shah for the Petitioners Mr.S. Deshmukh for the Respondent Nos.1 & 2 Ms.P.S. Cardozo, AGP, for State CORAM: S.C.DHARMADHIKARI, J. DATE: JULY 7, 2011. P.C.: 1. This petition under Article 227 of the Constitution of India is directed against the order below exhibit 5 in Civil Appeal No.83 of 2011 wherein firstly on 10.5.2011 the District Judge VI, Nashik passed an order to stay the execution and operation of the Joint Charity Commissioner’s order dated 3.5.2011. This was an ad-interim order made by him. The matter was placed before him later on and while confirming the ad-interim order pending the hearing of the appeal, on 13.5.2011, the learned District Judge was pleased to modify his ad-interim order and directed that the Joint Charity Commissioner's order will operate against the petitioner before me while it will remain stayed against the rest of the persons who are respondents, impleaded as proforma respondents, to this writ petition and particularly respondent Nos.4 to 24. : 2 : wp.4048.2011.sxw 2. In the submission of Mr.Thorat, learned Senior Counsel appearing for the Petitioners, the petitioner No.1 is the wife of Secretary of Petitioner No.2 public charitable trust. The Secretary expired in October 2010. The Trust thereafter passed a resolution on 16.10.2010. That resolution appoints the Petitioner No.1 as a Secretary in place of the deceased Secretary. Respondent Nos.1 & 2 filed an application before the Joint Charity Commissioner invoking his powers u/s 41E of the Bombay Public Trust Act, 1950. Inviting my attention to the contents of this application and particularly para 10 thereof, Mr.Thorat submits that what is projected is a grievance with regard to the appointment of Petitioner No.1 as a Secretary. Since she is appointed as a Secretary and she is functioning as such pursuant to the resolution of the Managing Committee of the Trust dated 16.10.2010, that by itself and a mere apprehension that in future she may endanger the trust property or commit some acts by which loss will be caused to the Trust that an injunction against her was claimed. Inviting my attention to the prayer clause (c) of this application filed on 3.12.2010, it is contended by Mr.Thorat that the Joint Charity Commissioner while deciding the application for injunction invoking the powers u/s 41E has specifically observed that prayer clauses (a) and (b) do not fall within the section 41E of the Act. As far as prayer clause (c) is concerned, Mr.Thorat submits that the Joint Charity Commissioner has observed that prayer for suspension of the opponents from the Managing Committee and removal does not fall within the scope of section 41E of the said Act. Hence, it does not survive in the eyes of law. However, in the same breath and without any discussion on applicability of section 41E and 47 insofar as the appointment of petitioner No.1 as Secretary is concerned, the : 3 : wp.4048.2011.sxw Joint Charity Commissioner partly allowed the appeal and granted the injunction against all including petitioner No.1. This injunction restrains her from publishing offers thereby inviting tenders in connection with the movable and immovable properties of the Trust and for making alienation, sale, additional construction or new construction, etc. of the trust properties. Thus she is restrained from doing so without prior permission of the Joint Charity Commissioner, Nashik region, Nashik. Mr.Thorat submits that admittedly petitioner No.1 is not a trustee and had been proceeded as such. If she is appointed as a Secretary and acts in furtherance of the resolution dated 16.10.2010, until and unless the appeal is decided and the Joint Charity Commissioner's orders are finally upheld or set aside, which stage is yet to reach, there was no question of the District Judge modifying his own order and vacating the ad-interim injunction qua the Petitioner No.1. Mr.Thorat submits that even if the appeal is pending, by this order of the District Judge the working of the Trust would be adversely affected inasmuch as petitioner No.1, although appointed as a Secretary and the resolution in that behalf being not set aside, still cannot function in furtherance of her appointment and carry out even the day to day functions. Mr.Thorat on instructions from the petitioners makes a statement that on her own and without prejudice to her rights and contentions, Petitioner No.1 will not take any decision independent of the resolution of the Trust dated 16.10.2010 but would proceed to implement the same and such other decisions of the Trust as are taken by the Managing Committee. Thus, all day to day management and administration of the Trust would be carried on in terms of this resolution and her appointment and she would abide by the : 4 : wp.4048.2011.sxw outcome of the appeal subject to of course her legal rights. 3. On the other hand, it is contended on behalf of the contesting respondent Nos.1 and 2 that what is impugned in this petition is only an interim order in the appeal. The appeal is pending. There is no reason to interfere at this stage and particularly because petitioner No.1 is party to the proceedings and there are serious allegations made insofar as her appointment and that has not been adjudicated or decided till date. Until and unless the District Judge renders a final decision on the appeal, it would not be appropriate for this Court to interfere as it could mean allowing the appeal at this stage itself. For all these reasons, the Petition deserves to be dismissed. 4. With the assistance of the learned Counsel for the parties, I have perused the application made by respondent Nos.1 and 2. What the application essentially projects is a grievance in relation to the appointment of petitioner No.1 as Secretary. Prima facie, the power to act for protection of Charities which is conferred by section 41E is to be exercised to grant a temporary injunction or to make such other order but for the purpose of preventing wasting, damaging, alienation, sale, removal or disposition of the trust property. The injunction can be granted so that any trust property which is in danger of being wasted, damaged, alienated by any trustee or any other person is protected or that if such property is being threatened or intended to be removed or disposed off, that act can be prevented. Prima facie, I do not see how the appointment of petitioner No.1 as a trustee in terms of the : 5 : wp.4048.2011.sxw resolution dated 16.10.2010 could have been questioned in the present proceedings. That apart, the allegations that are made in the application u/s 41E against the Petitioner No.1 have been perused by me. If the District Judge was of the prima facie opinion that by such allegations made in para 10 of the application, an injunction against petitioner No.1 could not have been granted and that is how if ad-interim injunction proceeds, then, there is no justification for the District Judge to have vacated the order dated 5.5.2011 by the impugned order dated 13.5.2011. The District Judge, prima facie, was aware of the fact that the application made earlier was not granted by the Joint Charity Commissioner. The District Judge seems to be prima facie aware that the Constitution of the Trust does not provide for solution for filling up the vacancies in case of death of office bearers of the executive body. In these circumstances and when the order of the Joint Charity Commissioner has been stayed by him in its entirety, there is no reason why the modification thereof was necessitated within a short span of 10 days. A reading of the order dated 13.5.2011 does not disclose as to why the learned Judge thought it fit to continue the injunction as against the Petitioner No.1 who is the appellant No.19 in Civil Appeal No.83 of 2011. The District Judge has observed that the Joint Charity Commissioner's order is ex-facie unsustainable in law as the other office bearers and members of the executive body could not be restrained by him for such reasons as may be assigned by him in his order dated 3.5.2011. There being hardly any case against these appellants but by the very same reasoning the learned Judge should have continued his ad-interim orders till the disposal of the appeal. If the Joint Charity Commissioner's order was ex-facie unsustainable in law, then : 6 : wp.4048.2011.sxw how could the District Judge prima facie continue it against the petitioner No.1 has not been clarified at all. Merely because she had been appointed as a general Secretary, it does not mean that the Joint Charity Commissioner's order requires to be continued as against her in any manner and mere appointment as a Secretary is not likely to endanger the trust property or that straightaway any acts are being attributed to her as would amount to removing or disposing off the trust property. She is appointed as a Secretary and she is bound to work in terms of the decisions and resolutions of the executive committee. With appropriate protection and clarification, the learned District Judge should have continued this ad-interim order till the disposal of the appeal. 5. His refusal to do so is ex-facie erroneous and could safely be termed as perverse. The impugned order is therefore set aside. It is directed that the order passed by the District Judge, Nashik on exhibit 5 in Civil Appeal No.83 of 2011 on 10.5.2011 to continue till the hearing and final disposal of the appeal but without prejudice to the rights and contentions of the parties. It is directed that until the disposal of the appeal, the petitioner No.1 shall continue as Secretary but will act only as per the decisions taken by the trustees even with regard to the day to day administration and management of the Trust. She will take decisions as per the resolutions of the executive committee and will continue as a Secretary of petitioner No.2 trust in terms of the resolution dated 16.10.2010 subject to the rights of Respondent Nos.1 and 2 to challenge the said resolution and her appointment by appropriate proceedings before appropriate forum. Equally, the protection given to the petitioner No.1 will be : 7 : wp.4048.2011.sxw without prejudice to the rights and contentions of respondent Nos.1 and 2 in the appeal and such other proceedings as are available to be initiated. Needless to state that the pending appeal should be decided by the District Judge, Nashik on its own merits and in accordance with law and uninfluenced by the prima facie observations made in this order. 6. Writ Petition is disposed of accordingly. No costs. (S.C.DHARMADHIKARI, J.)