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BOMBAY HIGH COURT
(Aurangabad Bench)
Before : N.V.DABHOLKAR and S.B.DESHMUKH, JJ.
Dinkar Shankarrao Patil and others .. Petitioner
Versus
Dr. Sheshrao Shankarrao Patil and others .. Respondents
Writ Petition No. 150 of 2008, decided on 13th February, 2008.
Bombay Public Trusts Act, 1950 - Section 47-Powers of Charity Commissioner under-Suspension of, removal of or discharging of Trustee and vesting of property to new trustees-Powers to-Charity Commissioner vested with such powers for smooth functioning of trust under Section 47 of Act-Charity Commissioner also competent to appoint trustees.-Section 47 confers power upon the Charity Commissioner to suspend, remove or discharge trustees and to vest property to new trustees. Thus, object of Section 47 seems to be for smooth functioning of the trust in question. If necessary, Charity Commissioner is vested with the powers to appoint, to suspend, remove or discharge trustees and to vest property to new trustees under Section 47 of the said Act.
The procedure for exercise of powers under Section 47 is laid down under sub-section (2). Hearing of the parties is contemplated. Enquiry, as the Charity Commissioner, may deem fit is also provided. It is further provided under sub-section (2) of Section 47 that the Charity Commissioner by order appoint any person as the trustee or may also remove or discharge any trustee for any of the reasons specified in sub-section (1) of Section 47. In relation to appointment of trustee or trustees sub-section (3) of Section 47 is material. After considering these two aspects of the matter that for appointment, suspension, removal or discharge of the trust or trustees, sub-section (4) makes it lawful for the Charity Commissioner to direct vesting of any property subject to the trust in the person so appointed as a trustee or trustees. The order passed by the Charity Commissioner under sub-sections (1) and (2) has been conferred with the status of the decree of the Court and appeal has been provided from such decree to the High Court. Incidentally, it is to be noted that the "Court" is defined under sub-section (4) of Section 2 of the Act meaning thereby. "In the Greater Bombay, City Civil Court and elsewhere, the District Court". In other words, the order passed by the Charity Commissioner is this elevated to the status of a decree passed by the Court i.e. the District Court and further appeal has been provided directly to the High Court by sub-section (5) of Section 47 of the said Act.
Per DESHMUKH, J.:-
1. This writ petition takes an exception to the judgment and order passed by the learned Assistant Charity Commissioner, Osmanabad in Enquiry Application No.725 of 2007, dated 29.12.2007.
2. This petition was listed before the learned Single Judge of this Court on 29.1.2008.
After hearing learned counsel Shri V.D. Salunke, appearing for the petitioners and Shri S.S.Jadhavar i/b Shri V.S.Janephalkar, learned Advocate appearing for respondents 1 and 2, learned Single Judge of this Court has passed an order directing the Registry of this court to place this petition before the Division Bench of this Court and that is how, this petition is listed for admission before this Court.
3. Resume of few facts for consideration of this writ petition is relevant :-
(A). Bhartiya Rashtriya Shiksan Sanstha, Lohara, District Osmanabad ("the trust") is registered under the provisions of the Bombay Public Trusts Act, 1950 ("the said Act"). This trust is having a constitution, copy of which is not on record. However, there are
some un-disputed facts. The trust is also registered under the provisions of the Societies Registration Act, 1870. The trust runs various educational institutions like one junior college, one senior college, two high schools and one primary school. In accordance with
the constitution of the trust, affairs of the trust are being looked after by the managing committee. The duration or tenure of the managing committee is of five years. Last election of the managing committee seems to have been held on 25.2.2001. After the election, Change Report No.157 of 2001 was filed and accepted by the learned Assistant
Charity Commissioner by order dated 6.6.2001. The change occurred after its acceptance seems to have been recorded with the learned Assistant Charity Commissioner in Schedule-I, copy of which is annexed with the petition. The duration or tenure of the members of the managing committee of the trust came to an end in February 2006.
(B).The petitioners have alleged that general body meeting of the trust was scheduled on 15.8.2006. Notices to all members were addressed. The elections, accordingly, took place. Out of 34 members of the trust, 24 members were present and 15 members of the managing committee have been duly elected. Change report, accordingly, is submitted on 16.8.2006 on behalf of the petitioners, which is registered as Inquiry Application No.717 of 2006.
(C).For holding the elections or such a meeting for this period of five years, respondents 1 and 2 have a different story to tell. According to them, such meeting was scheduled on 16.8.2006. The members of the managing committee were elected and change report accordingly was submitted by them to the learned Assistant Charity Commissioner on
19.8.2006, which was registered as Inquiry No.722 of 2006 . It is also not in dispute that these two change reports are pending on the file of learned Assistant Charity Commissioner.
(D). Respondents 1 and 2 have filed an application, purportedly under Section 41A of the said Act, which is registered by the learned Assistant Charity Commissioner as Inquiry application No.725 of 2007. This application, as noted above, seems to have been entertained by the learned Assistant Charity Commissioner and after hearing the parties to the said application, as noted above, said application is partly allowed by learned Assistant Charity Commissioner in following terms :-
"1. Application inquiry No.725/2007 at Exh.No.1 is partly allowed with directions.
2. The president Mr.Dinkar Shankarrao Patil and other office bearers in the recorded managing body have seized their status as a office bearers of the trust as the counter change reports No.717/2006 and 722/2006 are under adjudication.
3. The recorded managing body of the trust in Sch-I of P.T.R. as de-jure trustees are directed to manage the management and day to day administration of the trust as per the constitution of the trust without taking any policy decisions likewise a
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