1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO. 407 OF 2010 Sardar Bachitter Singh Sardar Kapoor Singh Tuli. -: VERSUS :- Anuj Shantilal Badjate and others. WITH CIVIL APPLICATION [F] NO.1346 OF 2010 IN F.A.ST.NO. 10108/2010. Shri Sankatmochan Hanuman Mandir -: VERSUS :- Anuj Shantilal Badjate and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : SEPTEMBER 09, 2010. Heard Shri S. Manohar, learned Counsel for Appellant, Shri J.M. Gandhi, learned Counsel for respondent Nos. 1 to 8, Shri N.W. Sambre, learned G.P. for respondent no.9 and Shri S.P. Bhandarkar and Shri R.M. Sharma, learned Counsel for Intervenor, in First Appeal No. 407/2010 and Shri S. Manohar, learned Counsel for applicants, Shri J.M. Gandhi, learned Counsel for respondent Nos. 1 to 7 and learned A.G.P. for respondent no.9 in Civil Application No.1346/2010. 2 Challenge in both the matters is to judgment dated 11.03.2010 passed on an application under Section 47 of the Bombay Public Trust Act, 1950 by the Joint Charity Commissioner, whereby the respondent nos. 1 to 7 in First Appeal No.407/2010 are appointed as Trustees. Appellant in First Appeal No.407/2010 claims to be devotee of Lord Hanuman, and a person interested. Applicant in Civil Application No.1346/2010 claims to be a Trust already in existence administering the affairs of the temple of Lord Hanuman, in relation to which the respondent nos. 1 to 7 have been appointed as Trustees. By placing reliance upon the judgment of learned Single Judge of this Court reported at 2010 [4] Mh.L.J. 253 (Avinash Ganpatrao Shegaonkar ..vrs... Jaywant Vishwanath Uttarwar and others), particularly paragraph nos. 9 to 11, Shri Manohar, learned Counsel for appellants in First Appeal No. 407/2010, has contended that members of same family or then employees working under them, have been selected as Trustees and the only purpose in so doing is to usurp the Trust property. He contends that there was no public notice and had there been any public notice, other interested persons like the present appellants could have also assisted the office of the Joint Charity Commissioner in selecting 3 Trustees. On behalf of the applicant in Civil Application No.1346/2010, Shri Manohar, learned Counsel has contended that the applicants [proposed appellant] is already a registered Public Trust and said trust is administering the temple as also other properties in the vicinity. His contention is, that the Trust already in existence was also not consulted before passing the impugned orders. Shri Bhandarkar, learned Counsel has filed Civil Application No. 1437/2010 in First Appeal No. 407/2010 is seeking intervention with similar grievance. He contends that respondent nos. 1 to 7 therein plan to put the property to commercial use. Shri Sharma, learned Counsel has filed Civil Application No.951/2010 with similar allegations for intervention. Civil Application No. 942/2010 is for seeking leave to appeal filed by the appellants in First Appeal No. 407/2010. Shri Gandhi, learned Counsel for respondent nos. 1 to 7 in both the matters [Trustees selected by the Joint Charity Commissioner] has pointed out that the appointment of respondent nos. 1 to 7 has been made after following the due procedure as found proper by the Joint Charity 4 Commissioner. He relies upon the express language of Section 47 of the Act, to urge that the mode of inquiry as contemplated therein is left to the wisdom of the said Authority and that inquiry has been duly conducted. According to him, only because some of the trustees so selected happen to be the employees of the respondents, that by itself is not sufficient to vitiate the appointment. He clarifies that the applicant in Civil Application No.1346/2010 is managing only temple and the surrounding property is not being looked after by any body for several years. After noticing all these facts, the respondent nos. 1 to 7 have been selected. After hearing all the respective counsel and after perusal of the judgment delivered by the learned Single Judge on which reliance is being placed, I find that the matter needs to be reconsidered by the Joint Charity Commissioner in the light of the grievance made by the applicants and intervenors before this Court. Civil Application Nos.1437/2010 and 951/2010 in First Appeal No. 407/2010 are allowed to the extent mentioned below. Civil Application No. 1436/2010 is also granted and First Appeal filed by the applicant therein be registered. That First Appeal is also being disposed of by this order. 5 Facts also show that the grievance that the property was lying uncared, was made before the Joint Charity Commissioner and the Joint Charity Commissioner has thereafter appointed respondent nos. 1 to 7 to look after the affairs of the Trust. The contention of Shri Gandhi, learned counsel show that the respondents are not in any way interfering with the management or the activities of the temple of Lord Hanuman, being looked after by the applicants in Civil Application No.1346/2010. The impact of this situation in the light of the documents creating the Trust, needs to be gone into by the Joint Charity Commissioner. The respective learned counsel for applicants/intervenors have contended that if the respondent nos.1 to 7 are permitted to remain in office during the pendency of the proceedings before the Joint Charity Commissioner, the Joint Charity Commissioner will not be in a position to take free and fair decision. According to Shri Manohar, learned counsel it will be post decisional hearing given to the applicants/appellants and intervenors. I find the apprehension misconceived. The Joint Charity Commissioner is responsible judicial officer and he is aware of the obligations cast upon him by law, and in the light of judgment of learned Single Judge of this Court, the Joint 6 Charity Commissioner has to apply his mind, qua the proceedings before him and thereafter pass appropriate orders. Moreover, when nobody else except them has claimed to be caring for other properties i.e. except temple, it will be against the interest of charitable purpose to revive situation in which nobody can be held responsible for such other property. Position which now emerges, is that the applicant in Civil Application No.1346/2010 is looking after the temple, while the respondent nos. 1 to 7 claims that they are looking after the other properties in the vicinity. In this situation, I do not find it proper to disturb the existing arrangement in any way. Impugned order is not set aside only with this end in view. However, this arrangement or its continuation is only an interim arrangement and shall not influence the Joint Charity Commissioner while deciding the applications moved by respondent nos.1 to 7 and also by the present applicants and intervenors before it. Those applications shall be decided independently in accordance with law. Shri Sambre, learned Government Pleader while appearing on behalf of respondent no.9 State of Maharashtra has pointed out that the propounder of the Trust has 7 expressed that the property should be put to a particular use by the State Government. He therefore, has made a request that the Joint Charity Commissioner should also issue notice to the Collector, while undertaking further enquiry in the matter. Parties including the respondent no.9 through Collector, Nagpur are directed to appear before the Joint Charity Commissioner on 30.09.2010. On said date the parties may file their replies to the respective applications filed by other side or file their applications also, if any. The Joint Charity Commissioner shall thereafter proceed to decide the applications filed by the present applicants and by others, as also by respondent nos. 1 to 7 in accordance with the law. The Joint Charity Commissioner shall arrange to issue a public notice in the matter at the expenditure of applicants and respondent nos. 1 to 7 jointly. The enquiry as contemplated under Section 47 of the Act shall be completed as early as possible and in any case by 31.03.2011. Till then the position in relation to the management of the temple and the property of the temple as on today, shall remain in force and parties will not alter it to the prejudice of Charitable purpose. 8 In view of the above discussions and observations, two First Appeals and three Civil Applications mentioned above are disposed of, with no order as to costs. JUDGE Rgd.