JUDGMENT - OKA ABHAY S., J.: - This Court issued notice before admission on 31st July, 2004. Notice is served on all the parties. On 13th July, 2004, this appeal was heard and the Counsel appearing for the parties agreed that the appeal should be decided finally at the admission stage. Accordingly this appeal was finally heard on 13th July, 2004 and 19th July, 2004.

2. This appeal arises from an order passed under section 22 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the said Act of 1950") by the learned Assistant Charity Commissioner, Solapur. The judgment and order dated 25th September, 2000 passed by the learned Assistant Charity Commissioner was confirmed in an appeal under section 70 of the said Act of 1950 by the learned Joint Charity Commissioner, Pune. Thereafter an application under section 72(1) of the said Act of 1950 was filed in the District Court. The said application has been rejected. Being aggrieved by the aforesaid judgments and orders, this appeal has been preferred under section 72(4) of the said Act of 1950. This Court has held in a judgment reported in 1998(2) Bom.C.R. 744 (Shivprasad Pardeshi v. Leelabai Kalwar)1, that though the appeal preferred in this Court against the order under section 72(2) of the said Act of 1950 passed by the District Court is numbered as first appeal, for all purposes it is a second appeal and therefore, the same will be governed by the limitations imposed by section 100 of the Code of Civil Procedure, 1908 (hereinafter referred as "the Code"). In view of this legal position, this appeal can be heard and decided only if a substantial question of law arises. After having heard the Counsel appearing for the parties, in my view the following substantial questions of law clearly arise :

(i) Whether the learned Assistant Charity Commissioner committed an error by deciding change report proceedings under section 22 of the said Act of 1950 without issuing a notice to the outgoing trustees who were likely to be affected by the order passed in the change report proceedings ?

(ii) Whether the application under section 72(1) of the said Act of 1950 could not have been entertained on merits as the issues involved in the said application were merely academic ?

When this appeal was taken up for hearing on 13th July, 2004, the learned Counsel appearing for the parties were made aware about the aforesaid substantial questions of law and the Counsel have made submissions on the basis of the same.

3. Sahayog Shikshana Prasarak Mandal, Barloni, Taluka Madha, District Sholapur, is a public trust duly registered under the said Act of 1950. The controversy is about the election of the Managing Committee which was held in the General Body meeting of the trust allegedly held on 22nd April, 1996. It is the case of the respondents Nos. 1 to 9 that by Resolution No. 3 passed in the said meeting dated 22nd April, 1996, the respondents Nos. 1 to 9 were appointed as the members of the Managing Committee for a period of five years and the respondents Nos. 1 to 9 substituted the earlier 10 trustees. The appellants are the members of the earlier Managing Committee which was allegedly removed on 22nd April, 1996. The change report under section 22 of the said Act, 1950 was filed by the respondent No. 1 on 17th July, 2000. He produced a copy of the proceedings of the meeting of the General Body allegedly held on 22nd April, 1996, consent letters of incoming trustees and his own affidavit in support of the change report. As the change report was filed beyond the stipulated period of 90 days, the respondent No. 1 filed an application for condonation of delay. By order dated 25th September, 2000, the change report was accepted. The learned Assistant Charity Commissioner recorded that no objection has been received from any outgoing trustee. It is pertinent to note that the change report was filed on 17th July, 2000 i.e. after lapse of four years from the date on which the alleged change occurre

Click Here to Read the rest of this document