1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.341 OF 2007 1 Shivaji s/o Rangnath Sonawane, age: 48 years, Occ: Agri., R/o Upala, Tq. Kannad, District Aurangabad. 2 Dr.Sitaram s/o Jasu Jadhav, age: 41 years, Occ: Medical Practitioner, R/o Jadhav Nursing Home, Kannad, Tq.Kannad, District Aurangabad. 3 Dr.Sahebrao M. Naval, age: 39 years, Occ: Service, R/o Kannad, Tq.Kannad, District Aurangabad. 4 Balbhim s/o Sambhaji Ghawale, age: 40 years, Occ: Service, R/o Latur, Tq. & Dist. Latur. 5 Sau.Suchita w/o Shivajirao Sonawane, age: 26 years, Occ: Household, R/o Upala, Tq. Kannad, District Aurangabad. 6 Tukaram s/o Keshav Salunke, age: 51 years, Occ: Retired, R/o Chalisgaon, Tq.Chalisgaon, District Jalgaon. 7 Madhav s/o Bandupanth Kulkarni, age: 66 years, Occ: Retired, R/o Pune, Tq. & Dist.Pune. Appellants Versus 2 1 Rajpal Singh Bhoj, age: 33 years, Occ: Nil, R/o Upala, Tq. Kannad, District Aurangabad. 2 Sahebrao Bhimrao More, age: 34 years, Occ: Social Work, R/o Kannad, Tq. Kannad, District Aurangabad. Respondents advocate for the applicant. advocate for Respondents No.1 & 2. WITH SECOND APPEAL NO.340 OF 2007 1 Shivaji s/o Rangnath Sonawane, age: 48 years, Occ: Agri., R/o Upala, Tq. Kannad, District Aurangabad. 2 Dr.Sitaram s/o Jasu Jadhav, age: 41 years, Occ: Medical Practitioner, R/o Jadhav Nursing Home, Kannad, Tq.Kannad, District Aurangabad. 3 Dr.Sahebrao M. Naval, age: 39 years, Occ: Service, R/o Kannad, Tq.Kannad, District Aurangabad. 4 Balbhim s/o Sambhaji Ghawale, age: 40 years, Occ: Service, R/o Latur, Tq. & Dist. Latur. 5 Sau.Suchita w/o Shivajirao Sonawane, age: 26 years, Occ: Household, R/o Upala, Tq. Kannad, 3 District Aurangabad. 6 Tukaram s/o Keshav Salunke, age: 51 years, Occ: Retired, R/o Chalisgaon, Tq.Chalisgaon, District Jalgaon. 7 Madhav s/o Bandupanth Kulkarni, age: 66 years, Occ: Retired, R/o Pune, Tq. & Dist.Pune. Appellants Versus 1 Rajpal Singh Bhoj, age: 33 years, Occ: Nil, R/o Upala, Tq. Kannad, District Aurangabad. 2 Sahebrao Bhimrao More, age: 34 years, Occ: Social Work, R/o Kannad, Tq. Kannad, District Aurangabad. Respondents Shri R.N.Dhorde, advocate holding for Mr.R.L.Kute, advocate for the appellants.. Mr.P.S.Pawar, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 16 th October, 2009. JUDGMENT: 1 Appellants have presented instant appeal raising exception to the order passed by Joint Charity Commissioner, Aurangabad, under Section 41D of the Bombay Public Trusts Act, 1950, on 02.05.2006 in Applications No. 4 9/2005 & 1/2005, which order came to be confirmed by III Additional District Judge, Aurangabad in M.A.R.J.I. Applications No.148/2006 & 167/2006 on 19.07.2006. 2 Appellants are the trustees of Trust named as `Kali Math Trust’. An application came to be presented by Respondents herein making allegations against appellant-trustees. According to applicants, Respondent No.1 and others in collusion with each others have constructed various blocks on the property belonging to the Trust for commercial use without informing the Joint Charity Commissioner. They have also purchased a two wheeler (motor cycle) out of the amount of income of the Trust. It is further alleged that Respondents have cut down sandal wood trees grown on the land belonging to the Trust and sold it and derived pecuniary benefits for themselves. It is also contended that Respondent No.1 and others have committed theft of electrical poles and in that respect offence has been registered against original Respondent No.1 – appellant no.1 herein at Kannad Police Station. It is contended that trustees of the Trust have indulged in several illegal activities which are detrimental to the interest of the Trust. 3 After receipt of the complaint, learned Joint Charity 5 Commissioner directed inquiry in the matter through the Assistant Charity Commissioner. The Assistant Charity Commissioner conducted inquiry and submitted report to the Joint Charity Commissioner. After considering the report of Assistant Charity Commissioner and after recording evidence led on behalf of appellants as well as original complainants, learned Joint Charity Commissioner came to the conclusion that the charges levelled against the trustees have been substantiated and as such, in view of the powers exercisable under Section 41D of the Act, the Joint Charity Commissioner directed removal of appellants / original respondents as trustees of the Trust. The learned Joint Charity Commissioner also directed the Assistant Charity Commissioner to conduct inquiry for appointing a fit person or persons for looking after administration and management of the Trust. An application tendered under Section 41E of the Act by original complainants also came to be allowed partly by the Joint Charity Commissioner and appellants – original respondents were directed not to take any policy decision till 15.06.2006 or until new trustees are duly appointed, whichever is later. 4 The order passed by the Joint Charity Commissioner was subjected to challenge in separate applications presented to the District Court. The applications came to be registered as M.A.R.J.I. No.148/2006 & 167/2006 and same were heard and disposed of by III Additional District 6 Judge, Aurangabad, who was pleased to dismiss the applications by order dated 19.07.2006. 5 I have heard arguments advanced by Shri Dhorde, learned Counsel appearing for Shri R.L.Kute, advocate for appellants and Shri P.S.Pawar, learned Counsel for Respondent No.1. 6 Shri Dhorde, learned Counsel appearing for appellants, has contended that the order passed by Joint Charity Commissioner is against the provisions of Section 41D of the Bombay Public Trusts Act. It is contended that learned Joint Charity Commissioner has not framed specific charges and resultantly appellants were prevented from meeting the allegations levelled against them. The charges levelled were as vague as those could be and on account of failure to frame specific charges, appellants – original Trustees were deprived of an opportunity to raise their defence in proper manner. The action contemplated by Section 41D has a serious consequence and allegations levelled against appellants / trustees were in respect of misfeasance and malfeasance. It was the responsibility of the adjudicating authority to frame specific charges giving particulars in respect of day, date and amount or property involved in respect of which allegations are levelled or shall specify the acts which are said to be detrimental to the interest of the 7 Trust. The charges are also required to be framed against an individual trustee or against the group of persons specifying the allegations against each of them. The complainants have raised general allegations against the trustees which should not have been taken into account and without specifying the allegations, trustees were called upon to submit their replies. Thus, on the basis of vague charges, inquiry was proceeded with and the trustees / appellants were held responsible for the acts alleged against them and action under Section 41D, thereby directing their removal, has been taken by the Joint Charity Commissioner. It is contended that the imputations reflecting on the integrity of the trustees have to be backed by a proof of high degree even if proceedings under Section 41D are not criminal proceedings; however, the proof required to sustain charges therein must satisfy highest standard than that normally required in cases governed by rule of preponderance of probability. It is contended that Section 41-D of the Bombay Public Trusts Act also mandates an inquiry after framing specific charges against the trustees. The whole inquiry conducted by the Joint Charity Commissioner is vitiated thereby rendering the resultant action as illegal. Appellants, therefore, prayed for quashing the order passed by Joint Charity Commissioner, which has been confirmed by District Court. 7 Learned Counsel appearing for the complainants supported 8 the orders passed by the Court / authority below. It is contended by the complainants that there are concurrent findings recorded by the authority / Court below holding that the trustees are guilty of committing the acts of malfeasance and misfeasance, which acts are detrimental to the interest of the trust. Respondents, therefore, prayed for dismissal of the Second Appeal. 8 After considering rival contentions, substantial questions of law, those arose for consideration, are: (A) Whether the order passed by Joint Charity Commissioner, which has been confirmed by the District Court, is in consonance with Section 41D (2) of Bombay Public Trustees Act, 1950. (B) Whether it is permissible for the authorities below to take an extreme action of removal of the trustees without framing proper charges and calling upon the appellants-trustees to answer such specific charges. Both the appeals are admitted and taken up for final disposal forthwith by consent of learned Counsel appearing for respective parties. 9 On perusal of the order passed by the Joint Charity Commissioner, it does not reflect that any specific charges have been framed by the Joint Charity Commissioner requiring the trustees to meet specific allegations. The application tendered by the complainants is also 9 quite vague and does not give details in respect of the acts / allegations against each of the trustees. The Joint Charity Commissioner has framed points for consideration and relevant Point No.2, which has been framed is, as to “Whether Respondent No.1 along with Respondents No.2 to 7 committed malfeasance and misfeasance and breach of the trust”, which has been answered in affirmative. And Point No.3 framed by the Joint Charity Commissioner is as to, “Whether Respondent No.1 with a support of Respondents No.2 to 7 misappropriated trust money to acquire property of his own”, which has also been answered in the affirmative. 10 Section 41D (2) mandates framing of charges against the trustees or the person against whom action is proposed to be taken and to give him opportunity to meet such charges on testing the evidence adduced against him and of adducing evidence in his favour. Section 41D reads thus: 41D. (1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 41B or suo motu may suspend, remove or dismiss any trustee of a public trust, if he,- (a) makes persistent default in the submission of accounts report or return; (b) wilfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or 10 rules made thereunder by the State Government; (c) continuously neglects his duty or commits any malfeasance or misfeasance, or breach of trust in respect of the trust; (d) misappropriates or deals improperly with the properties of the trust of which he is a trustee; or (e) accepts any position in relation to the trust which is inconsistent with his position as a trustee; (f) if convicted of an offence involving moral turpitude. (2) When the Charity Commissioner proposes to take action under sub-section (1), he shall frame charges against the trustee or the person against whom action is proposed to be taken and give him an opportunity of meeting such charges of testing the evidence adduced against him and of adducing evidence in his favour. The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge, with the reasons therefor. (3) Pending disposal of the charges framed against a trustee, the Charity Commissioner may place the trustee under suspension. (4) Where the Charity Commissioner has made an order suspending, removing or dismissing any trustee and such trustee is the sole trustee or where there are more than one trustee and the remaining trustee, according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the function of the trust and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust. 11 (5) A trustee, aggrieved by an order made under sub-section (1) may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order. (6) An appeal shall lie to the High Court against the decision of the Court under sub-section (5) as if such decision was a decree from which an appeal ordinarily lies. (7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final. 11 The Charity Commissioner can direct removal of trustees in the circumstances enlisted in sub-sections 1(a) to 1(f) of Section 41D of the Bombay Public Trusts Act. Sub-section (2) of Section 41D mandates framing of specific charges by the Charity Commissioner. Thus, it would be clear that before directing any action under Section 41D, it is necessary to find out that there are allegations, which fall into the categories noted in sub-sections 1(a) to 1(f) of Section 41D. In the instant matter, it reveals that the Joint Charity Commissioner did not frame specific charges, which has resulted in causing great prejudice to the trustees against whom action under Section 41D of the Act was proposed. It was not expected of the trustees to give specific reply when the allegations levelled against them were of quite vague in character. Although it appears that the Joint Charity Commissioner, while submitting report, considered specific charges contained in each of the complaints presented against trustees, however, requirement of Section 41D (2) can be 12 said to have been fulfilled only when the Charity Commissioner frame charges against the trustees and call upon them to answer specific charges. In the instant matter, as has been stated earlier, there are no specific charges framed by the Joint Charity Commissioner, which has an effect of denying opportunity to the trustees to meet specific charges against them. Learned Counsel for Respondents did not controvert this factual position. Thus, there is no escape from drawing an inference that the order passed by Joint Charity Commissioner is not in conformity with provisions of sub-section (2) of Section 41D of the Bombay Public Trusts Act. 12 Learned Counsel for appellants has placed reliance on the judgment in the matter of Vajubhai Patel and another Vs. The Charity Commissioner, Maharashtra State and others, reported in 1990 (2) Bom.C.R. 702. In paragraph 11 of the judgment, it is observed by this Court: “......... This is a possibility; but just that. Imputations reflecting on the integrity of people have to be fortified by proof of a high degree. Even if a proceeding under section 41D be not a criminal proceeding, the proof required to sustain charges therein must satisfy a higher standard than that normally required in cases governed by the rule of preponderance of probabilities.” 13 The III Additional District Judge erred in observing that the 13 proceedings under Bombay Public Trusts Act are not tried like criminal cases and the Court has to reach the conclusion on the basis of oral and documentary evidence appearing on record. However, while observing so, the Court below has turned a blind eye to the fact that the action contemplated under Section 41D in respect of removal of trustees is quite a serious action and although the proceedings under Section 41D may not be criminal proceedings, however, proof required to sustain charges therein must satisfy a higher standard than normally required in cases governed by the rule of preponderance of probabilities. In the instant matter, firstly the Court / authority below have not framed the charges properly which has caused prejudice to the trustees. In these circumstances, therefore, the whole inquiry by the Joint Charity Commissioner and consequential action stands vitiated. 14 It has also been urged by the Counsel for appellants that learned III Additional District Judge erred in refusing permission to the appellants to place on record additional evidence, which was not considered by the Joint Charity Commissioner. In the facts and circumstances of this case, I am of the opinion that the documentary evidence placed on record along with an application by the appellants ought to have been considered by learned III Additional District Judge. Considering the seriousness of matter under inquiry and considering the fact 14 that resultant action calls for extreme penalty, the Courts/authority below ought to have extended a fair opportunity to the appellants for submitting their defence. 15 In the circumstances enumerated above, I am of the opinion that the order passed by the Joint Charity Commissioner is vitiated on account of non fulfillment of requirements of sub-section (2) of Section 41D of the Bombay Public Trusts Act in respect of framing specific charges. 16 In this view of the matter, order passed by the Joint Charity Commissioner needs to be quashed and set aside, however, in the facts and circumstances of this case, it would be desirable for the Joint Charity Commissioner to follow proper procedure provided under sub-section (2) of Section 41D and after extending fair opportunity to the trustees to meet specific allegations, the learned Joint Charity Commissioner shall proceed to decide the matter afresh. 17 In the result, both the appeals are allowed. The order passed by Joint Charity Commissioner, Aurangabad in Applications No.9/2005 and 1/2005 on 02.05.2006, confirmed by III Additional District Judge, Aurangabad, in M.A.R.J.I. Applications No.148/2006 and 167/2006, by order dated 15 19.07.2006, stands quashed and set aside. Learned Joint Charity Commissioner, Aurangabad, shall deal with the matter afresh in accordance with provisions of law and considering the observations made in this judgment and shall arrive at a fresh decision after extending fair opportunity to the trustees / appellants to meet the allegations / charges levelled against them. Considering the facts and circumstances of this case, learned Joint Charity Commissioner, Aurangabad, shall decide the matter expeditiously. In the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Applications, if any, do not survive and stand disposed of. (R.M.BORDE) JUDGE ******* adb/sa34107