A. H. JOSHI, J.

( 1 ) PRESENT writ petition with prayers as were originally made pertained to the jurisdiction of single Judge of this Court. By an amendment, the petitioner herein introduced a challenge to the validity of Rule 7 of Bombay Public Trust Rules, 1951 (hereinafter referred to as 'rules' ). The ground of challenge is that the said Rule is inconsistent with section 76 read with section 2 (4) of Bombay Public Trusts Act, and has prayed for striking down thereof. Therefore, the petition came to be listed before the Division Bench.

( 2 ) THE notice before admission was issued and is served, the respondent no. 2 has not appeared. The petition was heard with understanding that it can be finally disposed of.

( 3 ) THE facts in brief leading to filing of the present petitions need to be examined in order to understand the grounds of challenge to the validity of rule 7. The facts can be summarised as follows :

( 4 ) THE controversy pertains to a Public Trust namely Smt. Anandabai education Society, Isapur, District Bhandara. A Change Report 596 of 1992 was filed by the petitioner Shri Anna s/o Shriram Fate reporting change in the formation of Managing Committee due to elections. The Change Report No. 3 of 1993 and Change Report No. 482 of 1999 were filed by the respondent chandrabhan Shivaji Isapure, claiming and reporting different changes.

( 5 ) ALL the three Change Reports were pending enquiry by Asstt. Charity commissioner. Parties are common on a story that they entered into compromise on 8-5-2003, it would not be necessary to narrate the particulars of the compromise. The result of the compromise as pleaded by the petitioner was that, present respondent No. 2 Chandrabhan Isapure who had objected the Change report No. 596 of 1992 gave consent by filing a pursis stating that Change report be allowed. Another step furtherance to the compromise was that the said chandrabhan s/o Shivaji Isapure filed withdrawal pursis thereby withdrawing the change Report No. 6 of 1993 and 482 of 1999. Consequently change report No. 596/92 filed by present petitioner was allowed and Change Report No. 6/1993 and 482/99 were dismissed.

( 6 ) RESPONDENT No. 2, filed an application before the Asstt. Charity commissioner, Bhandara who had disposed of the Change Reports in view of the consent and withdrawal etc. referred to hereinbefore. According to Chandrabhan shivaji Isapure, the promise incorporated in the compromise was broken by the petitioner Anna Sitaram Fate and also that disposal of change reports was erroneous etc. This application filed by Chandrabhan was registered as Misc. Application No. 137 of 2004. The prayer therein was for recalling the order deciding the change reports and re-opening the enquiry and decision therein as per law.

( 7 ) THE Misc. Application No. 137 of 2004 was heard by the Asstt. Charity commissioner, Bhandara. The present petitioner Anna Fate opposed the said application No. 137 of 2004 defending that he had not resiled from his promise and also objected to the maintainability of the application. After taking detailed resume of the facts, the learned Asstt. Charity Commissioner recorded his finding in para 6 of his Order and rejected the application by Judgment and order dated 17-4-2004. It would be useful to refer to the findings recorded by the Asstt. Charity Commissioner in Para 6 thereof which is at page No. 49 of paper book reads as follows :

" (6) It is crystal clear legal position that against the final orders in change reports under section 22 of the B. P. T. Act remedy is provided either to file appeal under section 70 or to file revision under section 70-A of the Bombay Public Trusts Act, 1950 before the Hon'ble Jt. Charity commissioner, Nagpur, however the applicant instead of availing this remedy he has filed present application before this authority for the reasons best known to him which is not proper. "

( 8 ) THE aggrieved applicant-present respondent No. 2 Chandrabhan, filed the petition