Important Point: Where a party obtains an order by misrepresentation or by playing fraud upon the competent authority, such an order cannot be sustained in the eyes of law as fraud avoids all judicial acts, ecclesiastical or temporal.

1. This appeal concerns 'Shikshan Prasarak Mandal' (Trust), a trust duly registered under the Maharashtra Public Trusts Act, 1950 (said Act).

2. By order dated 29 May 2009, the Assistant Charity Commissioner (ACC) purporting to exercise powers under section 50A framed new scheme for the management and administration of the Trust, in substitution of the existing scheme. The new scheme, amongst other matters, involves the curtailment of the tenure of existing trustees and the reduction in the strength of the governing body from 17 to 7 trustees. The appellants, the then existing trustees, appealed ACC's order dated 29 May 2009 to the District Judge, Malshiras invoking provisions of section 72(2). This appeal was dismissed by order dated 17 July 2010. Section 72(4) provides that an appeal shall lie to the High Court, against the decision of the District Court under section 72(2), as if such decision was a decree from which an appeal ordinarily lies. The explanation clarifies that the expression 'decision' shall include a scheme framed or modified under section 50A. Hence, the present appeal against orders dated 29 May 2009 and 17 July 2010.

3. On 4 November 2008, Santosh Shinde (R5) and Ramdas Kale (R3), members of the Trust, applied to the ACC for frame of new scheme of management and administration of the Trust, in substitution of the existing scheme invoking the provisions of section 50A. On 22 December 2008 Shivaji Abaji Mote [Mote -R6] and another, sought for their substitution in application dated 4 November 2008. On 18 March 2009, Mote filed 'address pursis' before the ACC, stating that addresses of the existing trustees, who stood to be removed under the new scheme, have changed and the new address is 'Post Bhamburdi (Mote Vasti), Taluka Malshiras, Zilla Solapur’. ACC, without verification, addressed notices to the existing trustees at the new address indicated by Mote in the address pursis Santosh Shinde (R5) by reference to certain registered acknowledgement due cards, purporting to bear signatures of the existing trustees, filed affidavit dated 25 May 2009 claiming that service was complete. The ACC, relying upon such affidavit, on 29 May 2009 made an order framing the new scheme in substitution of the existing scheme.

4. The appellants, who stood removed as trustees as consequences of ACC's order dated 29 May 2009, appealed against the same to the District Judge, Malshiras under section 72(2). By order dated 17 July 2010, the District Judge, Malshiras dismissed the appeal, hence the present appeal under section 72(4).

5. Mr. Bansode, learned counsel for the appellants has basically stressed upon the following main grounds in support of the appeal :-

(A) In terms of section 50A, no order framing or modifying an existing scheme for management and administration of the trust can be made without opportunity of hearing to the existing trustees. In the present case, there was no service of notice upon the existing trustees, most of whom except Mote (R6) stood to be removed under the new scheme. A fraud was played by Mote (R6) in order to create an impression that all the existing trustees have been duly served in the matter and on the said basis the ACC made the order dated 29 May 2009. Such order is in breach of the express provisions of section 50A; principles of natural justice and fair play; and can be said to have been procured by fraud and therefore, constitutes a nullity. The material on record clearly bears out the modus operandi with which such fraud was practiced by Mote (R6). On such grounds the order dated 29 May 2009 and the order of the District Judge dated 17 July 2010, confirming the same, are liable to be recalled and status quo ante is liable to be restored;

(B) In any case, the ACC in making the order dated 29 May 2009 and approving the substitution of the old scheme with the new scheme, has completely ignored the parameters of Section 50A and exercised powers without application of mind and in a casu