-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE WRIT PETITION NO. 6295 OF 2008 WRIT PETITION NO. 6295 OF 2008 WRIT PETITION NO. 6295 OF 2008 Shri Vijay Sadanand Dhere & Ors....Petitioners Vs. Jagdish Jaisingrao Lingras & Ors...Respondents Mr. S.S. Patwardhan for the Petitioners Mr. R.M. Kachare for Respondent 1 and 2. Mr. S.D. Rayrikar, AGP for Respondent No.3. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 8TH SEPTEMBER,2008 DATED : 8TH SEPTEMBER,2008 DATED : 8TH SEPTEMBER,2008 P.C. P.C. P.C. . Rule, returnable forthwith. Heard finally by consent of parties. 2. This petition is filed under Articles 226 and 227 of the Constitution against the order dated 15th May, 2008 passed by the Incharge Deputy Charity Commissioner, Kolhapur Region, Kolhapur whereby amending the scheme in exercise of the power under Section 50A(3) of the Bombay Public Trust Act. The learned Counsel for the petitioner brought to my notice the application moved under Section 50A(3) of the B.P.T. Act wherein existing Trustees (disputed by Respondent Nos.1 and 2) were not shown as party opponents to the application under Section 50A(3) of the B.P.T. Act. He has also brought to my notice that the Vakalatnama/power given on behalf of the Trust was signed by the applicant -2- himself. In other words the applicant has given authority to his Advocate on behalf of the applicant and also on behalf of the Trust. 3. Learned Counsel appearing for the petitioners submits that the impugned order is clearly in breach of the principles of natural justice and is obtained behind the back of the present petitioners, who are recorded trustees since their names find place in Schedule I maintained under B.P.T. Act. He, thus, submits that inspite of availability of the alternate remedy the petitioners are entitled to invoke writ jurisdiction of this Court since the order is clearly in breach of principles of natural justice. On being asked the learned Counsel appearing for Respondent Nos.1 and 2 could not establish that the present petitioners are not the trustees. However, he submits that the Election Officer did not include thier names in the voters list as such they are not the Trustees/voters. Reliance placed on the voters list is misplaced. Voters list cannot be an evidence in this behalf. 4. In the rejoinder the learned Counsel appearing for the petitioner brought to my notice Schedule I wherein the names of the present petitioner along with the respondents appear. Prima facie the Schedule I demonstrates that the petitioners are also the trustees of the trust. Unless the change is effected in Schedule I, it cannot be said that they are not the Trustees. Under these circumstances the -3- impugned order is prima facie in breach of the principles of natural justice. If this be so, bar of lalternate remedy cannot be invoked. 5. Both parties agree that the impugned order be set aside dispensing with the reasons to be recorded in support of this order by consent of parties and the matter be remanded back to the Charity Commissioner for consideration afresh. . Learned Counsel appearing for respondent Nos. 1 and 2 undertakes to amend the application so as to join the present petitioners as party opponents to the application under Section 50A(3) of the B.P.T. Act. Statement made in this behalf is taken on record. 6. In the aforesaid view of the matter the impugned order is set aside dispensing with the reasons by consent of parties. The Application No.5 of 2000 is restored to file of the Deputy Charity Commissioner with direction to permit respondent Nos. 1 and 2 to amend their application so as to implead the present petitioners as party opponents. . The Deputy Charity Commissioner is directed to dispose of the proceedings as expeditiously as possible at any rate within a period of six months from the date of receipt of the copy of this order. All rival contentions are kept open. -4- (V.C. DAGA, J.) (V.C. DAGA, J.) (V.C. DAGA, J.)