1. Heard Mr. A. P. Thakare, learned Counsel for the Appellant Nos.1 to 6, Mr. M. R. Joharapurkar, learned Counsel for the Respondent Nos. 2 to 4 & 6, Ms. D. V. Sapkal, learned AGP for the Respondent No.1/State. None appeared for the Respondent No.8.
2. In the present Appeal, challenge is to the order dated 30/3/2022 passed by the Joint Charity Commissioner, Nagpur in Application No. 196/2017, thereby appointing new trustees of Shri Shankar Deosthan, Wakodi, Tahsil Saoner, District Nagpur (for short, ‘the Trust’), by exercising the powers under Section 47 of the Maharashtra Public Trust Act, 1950.
3. The Appellants who claims to be managing the Trust, contended that the Joint Charity Commissioner has appointed the trustees without conducting proper enquiry and mainly by relying upon the interviews without granting opportunity of hearing to them as well as to cross-examine the witnesses or adduce evidence. The Appellants further relied upon the Change Reports filed by them, as the Change Reports were pending and there was no established vacancy warranting the impugned appointment.
4. The Respondents, on the other hand, disputed the Appellants case and relied upon the documents concerning the management and administration of the Trust.
5. In the light of this dispute between the parties, it would be relevant to record certain factual aspect, which is summarised as under :
Shri Shankar Deosthan Wakodi, Tahsil Saoner, District Nagpur is a public Trust registered under the provisions of erstwhile Bombay Public Trust Act, 1950 and now Maharashtra Public Trust Act, 1950, having registration (PTR) No. A-37(N). The Trust was registered on 29/8/1961. The mode of succession of the trusteeship is biannual election by the members of the public, in a meeting called by giving a Dawandi. As per Schedule-I, founder trustees are recorded at the time of registration of the Trust.
6. It is also undisputed fact that the founder trustees recorded on Schedule-I are all expired and no further trustees were brought on record during their life-time in the Schedule-I maintained by the office of Charity Commissioner.
7. It is further pointed out that the Trust is having the land admeasuring 6.06 HR., which was gifted by one Ganpatrao Ghadge and is recorded as the property of Trust. Till the year 2008, management of the temple and land was being taken care of, but thereafter as no one left behind for management and upliftment of the Trust property, same was not maintained by anyone.
8. In this background, the Respondents who are stating to be the resident of village Wakodi and interested persons to look after the management of the Trust and its property, applied under Section 47 of the Act of 1950 for appointment of trustees of the Trust vide application dated 6/9/2017. The said proceedings were registered as Application No. 196 of 2017.
9. The Appellants, who approached before this Court, came with a submission that since the year 2013-14 they are looking after the management of the Trust. In the year 2017, since the Appellant namely, Suresh Kuhite was of view to receive fund for the development of the Trust, so also ancient temple of Trust may declared as “Tirthkshetra” by Government, for that purpose he made enquiry from the concerned offices. At that time it was told to him that for getting such benefit for temple, he has to first establish that the Trust is registered and also furnish the copy of Schedule-I. Therefore, he went to the office of Charity Commissioner and make enquiry for copy of Schedule-I. Accordingly, he received copy of Schedule-I on 18/4/2017. At that time no change has been effected in the Schedule-I after the death of founder Trustees. Therefore, the Appellant namely, Suresh Kuhite and other trustees, who according to them looking after the affairs of Trust, prepared the Audit Reports of the Trust for the period from 1999 to 2016 and submitted the Change Report to the office of Deputy Charity Commissioner, Nagpur along with the Application for condonation of delay. It is his further submission that when the Change Reports are filed by him, he was regularly visiting the office of Charity Commissioner. At that time he came to know that present Respondent Nos.2 to 7 have filed an application for appointment of trustees and the order dated 15/12/2017 came to be passed by the Charity Commissioner to appoint them as a trustee. However, the learned Joint Charity Commissioner, Nagpur, without conducting proper enquiry as to who are actually in management and running the administration of the Trust, and without verifying the correct factual position by sending any Inspector attached with the office of the Joint Charity Commissioner, wrongly allowed the application filed by the Respondent Nos.2 to 7.
10. The Appellants, therefore, challenged the order dated 15/12/2017 before this Court by way of First Appeal No. 1236/2018. This Court, by order dated 19/9/2019 has quashed and set aside the order passed by the Joint Charity Commissioner dated 15/12/2017, as the Appellants were not granted hearing opportunity. This Court, on the submission of both the parties that they will appear before the Joint Charity Commissioner and the Joint Charity Commissioner was directed to decide afresh the dispute after granting opportunity of hearing to the Appellants within a particular time period.
11. After the decision of this Court dated 19/9/2019, the Appellants have further submitted their Change Reports in the year 2019, as the term of biannual election, according to them, was over as per their bye-laws. The Joint Charity Commissioner, after the matter was remanded back, in continuation of the earlier order dated 15/12/2017 passed further order and decided the application under section 47 of the Maharashtra Public Trust Act and thereby confirmed his earlier order of appointing Respondent Nos.2 to 7 as trustees of the Trust.
12. The order dated 18/10/2019 was again challenged before this Court by the Appellants by way of First Appeal No. 1966/2019. The said Petition was disposed of by order dated 22/9/2021, by recording the finding that the learned Joint Charity Commissioner has passed the order in complete disregard to the scheme of Section 47 of the Act of 1950 as well as without taking into consideration the order passed by this Court dated 19/9/2019.
13. In this background, the matter was second time remanded back to the Joint Charity Commissioner to decide the same on its own merits. This time, the Appellant Suresh Kuhite has moved the applications before the Joint Charity Commissioner, one for calling inspector’s report praying thereby to appoint the Inspector attached with the office of Joint Charity Commissioner and direct him to conduct enquiry about the management and administration of the Trust so also about the possession of the record, proceeding and property of the Trust as well as temple and submit his report to the office of Joint Charity Commissioner. The Second application was filed for grant of permission to intervene one Shri Prafullakumar Kuhite and others to file their reply to the main application and further grant opportunity to the intervenors to cross-examine the Applicants in the said proceeding as well as adduce evidence in support of their contention before the Joint Charity Commissioner.
14. The learned Joint Charity Commissioner, on 30/3/2022 while deciding the application for grant of permission to intervene and opportunity to cross-examine the Applicants and adduce evidence, has granted permission to the Appellants namely Prafullakumar Kuhite and others to file their reply as prayed, however, the prayer to cross-examine the Applicants and adduce evidence was rejected.
15. The learned Joint Charity Commissioner, on the same day, has passed the impugned order dated 30/3/2022, thereby allowing the application under Section 47 of the Maharashtra Public Trust Act on the basis of interviews and verification of the candidates and thereby appointed six persons namely.—
(1) Shri Devidas Chintamanrao Madankar as President;
(2) Shri Raghunath Dashrath Parate as Vice President;
(3) Shri Atul Shankarrao Bangare as Secretary;
(4) Shri Shankar Chintamanrao Khorgade as Trustee;
(5) Shri Yadavrao Tukaram Kanholkar as Trustee; and
(6) Shri Ashish Natthuji Raut as Trustee.
16. It is further directed that the abovesaid trustees shall file scheme application under Section 50-A of the Maharashtra Public Trust Act, 1950 before the competent authority for having smooth administration work of the Trust in future, within a period of three months from date of passing the impugned order.
17. The record further depicts the fact that the trustees which were appointed by the Joint Charity Commissioner, as per the directions issued in the order dated 30/3/2022 has submitted the scheme application under Section 50-A of the Maharashtra Public Trust Act before the Deputy Charity Commissioner in the month of June-2022.
18. In this background, I have heard the rival submissions made by the learned Counsel for both sides and perused the entire record, the provisions of law, as well as case laws relied upon by both the parties in the matter.
19. The learned Counsel for Appellants submits that in the proceeding decided under Section 47 of the Maharashtra Public Trust Act, and the Judgment delivered therein by the Joint Charity Commissioner is a decree of a District Court as a Court of original jurisdiction, and therefore, provisions of the Code of Civil Procedure are applicable while conducting enquiry by the Charity Commissioner. He further relied upon Section 76 of the Act of 1950 to state that Code of Civil Procedure is applicable to the proceedings which are conducted under the Maharashtra Public Trust Act. So also it is a submitted that all the enquiries and appeals under the Maharashtra Public Trust Act shall be deemed to be a judicial proceeding, and therefore, the provisions of the Code of Civil Procedure are applicable in the matter.
20. In the light of this submission, it would be first relevant to refer Section 47 of the Maharashtra Public Trust Act, which reads thus :
“47. Power of Charity Commissioner to appoint, suspend, remove or discharge trustees and to vest property to new trustees.
(1) Any person interested in a public trust may apply to the Charity Commissioner for the appointment of a new trustee, where there is not trustee for such trust or the trust cannot be administered until the vacancy is filled, or for the suspension, removal or discharge of a trustee, when a trustee of such trust, —
(a) disclaims or dies;
(b) is for a continuous period of six months absent from India without the leave of the Charity Commissioner or the Deputy or Assistant Charity Commissioner or the Officer authorised by the State Government in this behalf;
(c) leaves India for the purpose of residing abroad;
(d) is declared as insolvent;
(e) desires to be discharged from the trust;
(f) refuses to act as a trustee;
(g) becomes in the opinion of the Charity Commissioner unfit or physically incapable to act in the trust or accepts a position which is inconsistent with the position as trustee;
(h) in any of the cases mentioned in Chapter III, is not available to administer the trust; or
(i) is convicted of an offence punishable under this Act or an offence involving moral turpitude.
(2) the Charity Commissioner may, after hearing the parties and making such enquiry as he may deem fit, by order appoint any person as a trustee or may also remove or discharge any trustee for any of the reasons specified in sub-section (1).
(3) In appointing a trustee under sub-section (2), the Charity Commissioner shall have regard—
(a) to the wishes of the author of that trust;
(b) to the wishes of the persons, if any, empowered to appoint a new trustee;
(c) to the question whether the appointment will promote or impede the execution of the trust;
(d) to the interest of the public or the section of the public who have interest in the trust; and
(e) to the custom and usage of the trust.
(4) It shall be lawful for the Charity Commissioner upon making any order appointing a new trustee under sub-section (2) either by the same or by any subsequent order to direct that any property subject to the trust shall vest in the person so appointed and thereupon it shall so vest.
(5) An appeal shall lie to the Court against the order of Charity Commissioner under sub-section (2), as if such order was a decree of a district court as a court of original jurisdiction from which an appeal lies within sixty days from the date of the order, which shall otherwise be final.”
21. On perusal of this provision, it is clear that the legislation has given powers to the Charity Commissioner to appoint any person interested in public trust, if he applied to the Charity Commissioner for the appointment as a trustee. The Joint charity Commissioner is then required to conduct hearing of the parties, and by making such enquiry, as he may deem fit, by order appoint any person as a trustee of the trust.
22. This provision further states that while appointing the trustee, the Charity Commissioner shall have regard to the wishes of author of the Trust; to the wishes of the persons, if any, empowered to appoint a new trustee; to the interest of the public or the section of the public who have interest in the trust; and also to follow the custom and usage of the trust. So also the order passed under Section 47 being a decree of a District Court, same can be challenged before a Court by way of Appeal. As such, in this provision, the Charity Commissioner is empowered to make enquiry, as he may deem fit, while appointing the trustees.
23. Sections 74 and 76 of the Maharashtra public Trust Act reads as under :
“74. Inquiries to be judicial inquiries.
All inquiries and appeals under this Act shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code.
76. Civil Procedure Code to apply to proceedings [before Court] under this Act.
Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court under this Act.”
As per Section 74, all the enquiries and appeals are deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of IPC and as per Section 76, provisions of the Code of Civil Procedure shall apply to all the proceedings before the Court under this Act.
24. In the light of these two provisions, and more particularly, under Section 76, it is clear that the provisions of the Code of Civil Procedure are made applicable to the proceedings before the Court under the Act. Therefore, it would be relevant to consider the definition of “Court”, as defined under Section 2(4) of the Maharashtra Public Trust Act. According to this Section 2(4), definition of “Court” reads as under :
“2. Definitions.
(1) x x x x x x x x x
(2) x x x x x x x x x
(3) x x x x x x x x x
[(4) “Court” means the High Court of Judicature at Bombay;]”
The definition “Court” under this Act means “the High Court of Judicature at Bombay”. It is no where mentioned that the Authorities like Deputy Charity Commissioner, Assistant Charity Commissioner or Joint Charity Commissioner comes under the definition of “Court”.
25. In the light of this provision, Rule 7 of the Maharashtra Public Trust Rules is also relevant which reads as under :
“7. Manner of inquiries
[Except as otherwise provided in the Act and these Rules, inquiries under or for purposes of sections 19, 22, 22A, 28, 29, 36, 39, 41D, 41E(3), 43(2)(a), 47, 50A, 51, 54(3) and 79AA(2) or any other inquiry which the Charity Commissioner may direct to be held for the purpose of the Act,] shall be held, as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Court Act, 1882, and elsewhere under the Provincial Small Cause Court Act, 1887, in any inquiry a party may appear in person or by his recognised agent or by a pleader duly appointed to act on his behalf.
Provided that any such appearance shall, if the Deputy or Assistant Charity Commissioner so directs, be made by the party in person.”
Bare perusal of this provision clearly states that except as otherwise provided in the Act and Rules, inquiries under Section 47 or under other provisions, the Charity Commissioner shall held such inquiry under the provisions of Provincial Small Cause Courts Act, 1887.
26. In the light of abovesaid provisions of the Maharashtra Public Trust Act, it is clear that Section 47 permits enquiry and Rule 7 prescribes the manner of inquiries. However, question being raised that the provisions of the Code of Civil Procedure would be applicable to such inquiry, it would be, therefore, relevant to note the Order 50 Rule 1 of the Code of Civil Procedure, where it is made clear which provisions of Code of Civil Procedure shall not extend to Courts constituted under the Provincial Small Cause Courts Act. Order 50 Rule 1 of the Code of Civil Procedure reads as under :
“ ORDER L
PROVINCIAL SMALL CAUSE COURTS
1. Provincial Small Cause Courts.— The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), [or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], [or to Courts in [any part of India to which the said Act does not extend] exercising a corresponding jurisdiction] that is to say—
(a) so much of this Schedule as relates to —
(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;
(iii) the settlement of issues; and
(b) the following rules and Orders :—
Order II rule 1 (frame of suit);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment;
Order XVIII, rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII, rules 2,3,5,6,7 (review);
Order LI.”
Bare perusal of this provision clearly states the provisions of the settlement of issues, Order 2 Rule 1 with regard to framing of suit; Order 10 Rule 3 with regard to record of examination of parties; Order 18 Rule 5(2) to (12) with regard to Evidence etc. would not be applicable in the matter.
27. In the present case, this Court is dealing with the proceedings under Section 47 of the Maharashtra Public Trust Act, and therefore, in my opinion, Rule 7 is required to be considered with Section 47 of the Act of 1950. Perusal of Section 47 of the Maharashtra Public Trust Act no where laid down any procedure to conduct enquiry. Rather sub-clauses (2) and (3) empowers him to conduct such inquiry as he deems fit. The Clause (2) specifically states that Charity Commissioner, after hearing the parties and making such enquiry as he may deem fit, by order appoint any person as a trustee. But while exercising such powers, sub-clause (3) of Section 47 of the Act shall have regard i.e. wishes of the author; to the wishes of the persons, if any, empowered to appoint a new trustee; to the question whether the appointment will promote or impede the execution of the Trust etc. are necessary to be looked into.
28. In the light of abovesaid provisions of law, conclusion can be drawn that merely because order passed under Section 47 of the Maharashtra Public Trust Act being a decree, ipso facto, the entire provisions of Code of Civil Procedure are not applicable to the enquiry which is to be conducted by the Charity Commissioner. As defined under Section 2(2) of the Code of Civil Procedure, “Decree” means formal expression of an adjudication, which conclusively determines the rights of the parties with regard to controversy in the proceeding. For example, if application is decided under Order 7 rule 11 of the Code of Civil Procedure of rejecting the Plaint, is also a decree and for deciding the same only adjudication on the basis of submission of parties is necessary. Hence, applying the same principle, here while deciding the proceeding under Section 47 of the Maharashtra Public Trust Act, as stated under Rule 7 of the Maharashtra Public Trust Rules, the provisions of the Code of Civil Procedure as far as possible would be applicable, by applying the procedure as like Provincial Small Cause Courts Act, 1887.
29. In the circumstances, submission of the Appellants that Charity Commissioner did not follow the provisions of the Code of Civil Procedure while conducting enquiry, cannot be accepted in the present matter. Enquiry under Section 47 needs to be conducted after hearing the parties and by making such inquiry as he deems fit. While conducting such enquiry, it is necessary for the Joint Charity Commissioner to keep in back of the mind the wishes of the author of Trust; wishes of the persons; whether appointment will promote or impede the execution of Trust; custom and usage of Trust; and interest in the Trust.
30. In view of this, in my considered opinion, law laid down by the Co-ordinate Bench of this Court in the case of Avinash Ganpatrao Shegaonkar and others V/s Jayawant @ Babasaheb s/o Vishwanath Uttarwar and others, 2010(4) Mh.L.J. 253 found to be relevant in the present matter. The Co-ordinate Bench of this Court, while considering the similar circumstances has held that the enquiry, as directed under Section 47, is something short of trial, therefore, according to this Court, wherever an enquiry as required by law is to be held, the law expects the authority to do some kind of investigation and consideration of material before it. An enquiry can never be so informal that without considering the stipulations under Section 47 cannot be conducted. According to this Court, Charity Commissioner is expected to do something more than that. He is bound to consider the contents of the application and biodata of each candidate and it would be necessary for him to enquire with the persons interested in the Trust or even devotees. After conducting such enquiry, he can make the appointment of the candidates, who are interested persons who run the Trust. The findings recorded by this Court in the case of Avinash (supra), particularly, paragraph Nos.9, 10 and 11 which are relevant in the present matter are reads as under :
“9. Shri Gordey and Shri Mishra, the learned counsel for the respondents, contended that the Charity Commissioner was satisfied about the fitness of respondents and there is nothing adverse against them. They submitted that an enquiry was made by the Charity Commissioner and then the order is passed. It is clear from the section itself that before appointment is made an enquiry is required to be made. The word enquiry is not defined in the Act. However, word enquiry has been defined best in Ramnath Ayer's Law Lexicon as 'search for knowledge, investigating a question. To me, the enquiry is something short of trial. Therefore, wherever an enquiry as required by law is to be held, the law expects the authority to do some kind of investigation and the consideration of material before it. Shri Mishra contended that the Charity Commissioner had considered the application and biodata before him and he was not required to consider more than that. The submission cannot be accepted. The enquiry can never be so informal and it has, in fact, to be formal. The question is whether the Charity Commissioner was bound to consider the contents of the application and bio data alone or something more was expected of him while taking the decision. I find that the Charity Commissioner is expected to do something more than that. He is not supposed to accept as gospel truth what is stated in the application. It would also be necessary of him to enquire with few persons interested in Trust or even devotees. Ultimately, the Trust is to be run for benefit of the public. Therefore, consultation with a few would be mandatory. In the instant case, what has happened is that; one person filed an application. He suggested certain names and the Charity Commissioner accepted the suggestion and made an appointment within a week's time. Shri Gordey had submitted that there is no provision to give any public notice or notices to anybody in section 47. There is no specific provision in the said section but then section certainly contemplates an enquiry and enquiry, as stated earlier, is nothing but an investigation and may be short of a trial. Such enquiry is with a view that the Charity Commissioner takes a decision after verifying the correctness of the allegations made in the application, suitability of persons and if any other suitable persons are available. The Charity Commissioner has to bear in mind the provisions of sub-section (3) of section 47 also while holding an enquiry. Sub-section (3) speaks of things which the Charity Commissioner is supposed to take into account while making an enquiry. Clause (d) of sub-section (3) would make it clear that the Charity Commissioner is supposed to consult the persons interested and also the public interested. The fact that the Charity Commissioner is to consider the interest of the public, who have interest in the Trust, shows that the consultation with such persons is absolutely necessary and this provision, to my mind, suggests that a public notice must be Issued. The interest of the public can be protected only if a notice is issued and public is informed of such application having been made and such vacancies having arisen. The submission of Shri Mishra that the appellants should have come forward voluntarily before the Charity Commissioner and should have contested the application cannot be accepted. In fact, the expectation of Shri Mishra that the appellants should have voluntarily come forward cannot be accepted also, because the appellants were not in the knowledge of such application having been filed before the Charity Commissioner. How does he then expect the appellants to appear before the Charity Commissioner and contest the application ?. In fact, as pointed, the application was decided within a week's time and with great haste, leaving no scope for the appellants to participate. In fact, the respondent-Uttarwar should have fairly asked the Charity Commissioner, to issue notice to the present appellants and the public since the present appellants also have been fighting with him in the Court of law since 1998. Even the Charity Commissioner knows that there are two factions. In spite of this he chooses not to issue notice to any other party. If any enquiry has to be held, it would be incumbent to hear both the factions. In spite of the knowledge, as stated earlier, the Charity Commissioner failed to issue any notice to the appellants or to the public in general. Such a notice could have been displayed in the temple itself. Had the Charity Commissioner given a notice or displayed it in the temple, a wider choice would have been available to him for selection of trustees and the information about all others which may have and could have been suppressed. The result of not issuing notice is that all others are deprived of being considered for the appointment as trustees. The Charity Commissioner was not bound to consider the names as mentioned in the application alone. If this kind of procedure is followed, then perhaps the Charity Commissioner will be left with no choice but to appoint only those whose names are to be found in the application. This certainly is not contemplated.
10. There is yet another reason why proper enquiry and investigation is necessary in the matter under this section. This, to my mind, is clear from the provisions of sub-section (5) of section 47. Sub-section (5) says that an order passed on the enquiry shall be deemed to be a decree and an appeal shall lie against such an order. Use of word decree is very significant. Decree is defined in Civil Procedure Code as follows-
"Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
11. Thus, a decree finally determines the rights between two rival parties. Therefore, in the enquiry, parties are required to be heard and then the rights of those parties are required to be determined. I have no manner of doubt that enquiry should in such cases be conducted only after noticing rival factions and the public interested, else such an enquiry would merely be a farce.”
31. In the present case, in the light of this legal position, I have perused the impugned Judgment passed by the learned Charity Commissioner. From the impugned Judgment, it is clear that the learned Joint Charity Commissioner has conducted the interviews of the persons who have applied before him and desirous to get appointment as trustees of the Trust. While appointing such persons, he has recorded specific findings as to how he found that the persons are suitable for the welfare of the Trust, particularly, in terms of Section 47(3) of the Maharashtra Public Trust Act.
32. The Appellants, who approached before this Court, came with one other legal submission that once Change Reports are pending before the Joint Charity Commissioner, it means that no vacancies were available in the Trust, and therefore, invoking powers under Section 47 of the Maharashtra Public Trust Act by the Charity Commissioner is itself illegal. According to them, once the Change Reports are filed before the Assistant Charity Commissioner, the same were required to be considered first by the Authority. It is further stated that as per the settled position of law, if any change has taken place in the Trust, the Change Report, which is filed before the Authority for giving its effect, the date of resolution of the Trust to bring about such change is the important date and once that resolution is there, powers under Section 47 of the Act of 1950 cannot be invoked.
33. The Appellants, to substantiate their submission, have relied upon the following Judgments of this Court.
(i) Ganesh Mahadeorao Thawre V/s Central Hindu Military Education Society, Nashik and another, 2007(6) Mh.L.J. 589;
(ii) Adarsh Vidyalaya Shikshan Samiti, Manatha V/s State of Maharashtra and others, Writ Petition No. 11297 of 2014;
(iii) Vijay K. Mehta and another V/s Charu K. Mehta and others, 2008(5) Mh.L.J. 853;
(iv) Murlidhar Janrao Kale and others V/s State of Maharashtra and others, 2011(1) Mh.L.J. 849;
(v) Kadir Ajim Sheikh v/s Ashok Harichandraji Satpure and others, Writ Petition No. 5450 of 2012;
(vi) Avinash Ganpatrao Shegaonkar and others V/s Jayawant @ Babasaheb Vishwanath Uttarwar and others, 2010(4) Mh.L.J. 253;
(vii) Dhanraj Natthuji Kale and others V/s Govindrao Laxmanrao Choudhary, 2012(4) Mh.L.J. 956.;
(viii) Jagatnarayansingh Swarupsingh Chithere and others V/s Swarupsingh Education Society and Another, 1980 Mh.L.J. 372;
(ix) Pratap s/o Dattratray Taware V/s Kamla Shankar Joshi and Others, First Appeal No. 1349 of 2022;
(x) Abdul Baga and Ors. V/s Mohammed Hashim & Ors. First Appeal No. 172 of 2001;
(xi) Parvatibai Digambarrao Deshpande & Ors. V/s Balkrishna Ramkantji Baheti, First Appeal No. 2440 of 2022;
34. In view of this legal submission pointed out by the Appellants in the matter, I have perused the record meticulously and noticed that the learned Joint Charity Commissioner, before passing the impugned order has called the information from the Assistant Charity Commissioner, Nagpur as to whether any Change Reports are pending on his file in respect of Shri Shankar Deosthan, Wakodi, Tahsil Saoner, District Nagpur. In response to his letter dated 8/11/2017, the Assistant Charity Commissioner, Nagpur, by his letter dated 10/11/2017, has informed the Joint Charity Commissioner, Nagpur that no Change Report was pending to his file at the relevant time.
35. It is further pertinent to note that in the present matter the Respondents have filed the application under Section 47 on 6/9/2017. If the submission of Appellants is considered, it is clear that the Appellants have filed Change Report along with the application for condonation of delay on 13/12/2017. It is not pointed out whether the application for condonation of delay has been allowed or rejected or pending before the Assistant Charity Commissioner, Nagpur, before deciding the application under Section 47 of the Maharashtra Public Trust Act.
36. It is pertinent to note that unless the application for condonation of delay is allowed, it cannot be said that the Change Report filed by the Appellants was registered with the office of Joint Charity Commissioner. Therefore, from the record, which is made available before this Court, it can be concluded that the Change Report was not registered, before application filed by the Respondents under Section 47 of the Maharashtra Public Trust Act. In view of this factual position, in my considered opinion, the submission made by the Appellants in this regard is not applicable in the facts and circumstances of the present case.
37. The proposition of law laid down by this Court in case laws referred by the Appellants that in case trustees of the Trust are alive or Change Reports are pending on the file of Charity Commissioner, then certainly proceeding under Section 47 of the Act can be questioned by the person whose Change Report is pending for consideration. But in the present case, except bald statement nothing is placed on record to demonstrate that before filing application, any Change Report was pending on the file of Charity Commissioner. So also the Appellants failed to point out that any Change Report is registered and it is under process for consideration. Rather it is clear from the record that to give counter-blast to the application filed under Section 47 of the Act, attempt has been made to demonstrate that Change Reports are pending. Hence, the case laws referred by the Appellants are not applicable in the present matter.
38. The further submission made by the Appellants is that they have moved application before the Joint Charity Commissioner to appoint the inspector and direct him to conduct enquiry about the management and the administration of the trust and permission to lead evidence and cross-examine the Respondents in the matter which was partly allowed by the impugned order dated 30/3/2022. In support of this submission, Appellants have relied upon the Judgment of this Court in the case of Dhanraj Natthuji Kale (supra), wherein it is observed in paragraph No.6 as under :
“6. The charge regarding sale of land without the permission of Joint Charity Commissioner is said to have been proved. Ignoring the contention raised by Shri Thakre, the learned counsel for the appellants, that the trust had in fact purchased equal area of land after sale of the land of the trust for convenience, in my opinion, it was the duty of the Joint Charity Commissioner to make an investigation about the sale and purchases, if any, of the land either by sending inspector of the trust or by some other mode to find out the correct position. Whether the sale price of the land sold was accounted for or not was again a matter of investigation since it is contended before me that with the said amount some other land was purchased. In the absence of any investigation, merely relying on the copies of the sale deeds filed on record before him and straightway holding that the charge about sale of land of the trust was proved, the Joint Charity Commissioner could not have made the impugned order. It is true that the charge that the land of the trust was sold without permission of the Joint Charity Commissioner, is a serious charge. But then upon investigation if it is found that some other land has been purchased, which is convenient for the management by the trust, the gravity of the charge would certainly differ and some workable arrangement could have been made by the Joint Charity Commissioner in that situation by issuing direction under section 41-A of the Bombay Public Trust Act. Further, it is settled legal position that sale of the land without prior permission of the Joint Charity Commissioner becomes void-abinitio and does not bind the trust. That being so, in the absence of any proper investigation and taking into consideration all the above factors, I do not think that it could be said that the Joint Charity Commissioner followed the required procedure before making the order of removal of trustees. It is seen that the Joint Charity Commissioner has held that appellants/trustees have received donations without maintaining accounts. Except writing one sentence that the trustees have received donations without maintaining accounts, there is absolutely no material indicated to the said effect in the order of the Joint Charity Commissioner. In other words, the Joint Charity Commissioner did not make any investigation, did not record any statement of doners or found out any accounts or the amount of donations received and so on and so forth. The Joint Charity Commissioner could have made a regular inquiry into the matter by sending his inspector, by 7/4th examining the persons concerned, whether the donations were given/received or not. By merely stating in the impugned order that donations were received and were not accounted for without any materials in support, show how casually the proceedings under section 41-D were conducted. Similar is the position regarding charge of not filling the vacant seats of the trustees who had expired. Again investigation was required to be made from the record as to how many were the vacancies and as to why the vacant posts were not filled in, what were the reasons. Are there any good reasons for not filling the vacant posts, whether the vacant seats were required to be filled in or not and so on. Still it was held that the charge was proved. The District Judge also committed an error in not considering the fact that the appellants did not participate in the proceedings and had no chance to defend for whatever reason.”
Considering the facts of the present case, Judgment relied upon by the Appellants is not applicable, because in the said case the proceedings were initiated under Section 41-D of the Act of 1950. Under Section 41-D, the provisions are of penal nature against the individual trustee, and therefore, as per the settled position of law, if the action is of penal nature, then every opportunity is required to be granted to the concerned trustee. But this principle cannot be made applicable to the proceeding under Section 47 of the Maharashtra Public Trust Act.
39. The Appellants in the present Appeal have raised objections only on the procedural aspect and no document nor evidence is brought on record stating that persons appointed as trustees are not having good character or not eligible on any grounds as recorded in their favour by the Charity Commissioner.
40. In the present case, after perusal of the impugned Judgment, which is delivered by the learned Joint Charity Commissioner, in my considered opinion, principles laid down by the Co-ordinate Bench of this Court in the case of Avinash Shegaonkar (supra) seems to have diligently followed by adopting the procedure, which the Joint Charity Commissioner deems fit in the matter. So also rightly took recourse of Section 47(3) of the Act of 1950. Hence, appointment of trustees is legal and justified in the matter.
41. It is also seen that the appointed trustees are diligently carrying out the function for the welfare of the Trust and conducting religious functions so also maintaining proper record of the Trust. Therefore, considering all these factual as well legal positions, I do not find any illegality committed by the learned Joint Charity Commissioner while deciding the application. Hence, for the reasons stated above, First Appeal stands dismissed.
42. Since First Appeal is dismissed, pending Civil Application Nos. 1860/2022 and 3721/2025 do not survive. Both the Applications stand disposed of accordingly.
