JUGDMENT:- The learned Single Judge (Coram: V. R. Kingaonkar. J.) by his order dated 24.4.2007 has made Reference to Larger Bench and accordingly by orders of Honourable the Chief Justice this Special Bench is constituted. The point of Reference can be summed up as follows:-

Whether as against interim order of suspension passed under Section 41 - D(3) of the Bombay Public Trusts Act. 1950, an application to District Court and against order of District Court in such application, an appeal to High Court are tenable?

2. In Second Appeal No.824 of 2006 the learned Judge has expressed vie\v that application to District Court or an Appeal to this court are not tenable against interim order passed under Section 41-D(3) of the Bombay Public Trusts Act. 1950 (hereinafter referred to. "the Act of 1950"); whereas in Writ Petition No. 656 of 1999 view is expressed by the learned Judge (Coram: B. H. Marlapalle. J.) that such application to District Court and an appeal to High Court are tenable.

3. Before we proceed to the arguments advanced before us, we may reproduce Section 41- D of the Act of 1950 for ready reference. It is as follows:-

"41D. Suspension, removal and dismissal of trustee:

(1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under Section 41-B or suo motu may suspend, remove or dismiss any trustee of a public trust, if he-

(a) makes persistent default in the submission of accounts, report or return; (b) willfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or rules made there under by the State Government;

(c) Continuously neglects his duty or commits any malfeasance or misfeasance, or breach of trust in respect of the trust: (d) misappropriates ordeals improperly with the properties of the trust of which he is a trustee;

(e) Accepts any position in relation to the trust which is inconsistent with his position as a trustee; or

(f) is convicted of an offence involving moral turpitude.

(2) When the Charity Commissioner proposes to take action under sub-section (ll. he shall frame charges against the trustee or the person against whom action is proposed to be taken and give him an opportunity of meeting such charges of testing the evidence adduced against him, and or adducing evidence in his favour. The order of suspension, removal or dismissal shall stale the charges framed against the trustee, his explanation and the finding on each charge, with the reasons therefor.

(3) Pending disposal of the charges framed against a trustee, the Charity Commissioner may place the trustee under suspension,

4) Where the Charity Commissioner has made an order suspending. removing or dismissing any trustee and such trustee is till' sole trustee, or where there are more than one trustee and the remaining trustees, according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the functions of the trust, and such person shall hold the office only until a trustee is duly' appointed according to the provisions of the instrument of trust.

5) A trustee, aggrieved by an order made under sub-section (1), may within ninety days from the date of communication of the order of suspension. removal or dismissal, apply to the Court against such order.

6) An appeal shall lie to the High Court against the decision of the Court under subsection (5) as if such decision was a decree from which an appeal ordinarily lies.

(7) The order of the Charity Commissioner shall, subject to any order of the court or in appeal, be final.”

We may also note that Section 41-D of the Act of 1950 was inserted by Maharashtra Act XX or 1971 and is made applicable with effect from 15.06.1972.

4. Heard Mr. P. R. Katneshwarkar, advocate for the appellants and Mr. M. M. Joshi. advocate for the respon

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