The remedy of revision under Section 70A of the Act is an equally efficacious remedy available to the petitioners

JUDGMENT

Mangesh S. Patil, J. - Heard.

2. Rule in both the Writ Petitions. It is made returnable forthwith. The learned Advocates for the respective respondents from both the Writ Petitions waive service. Even the learned A.G.P. waives service. At the joint request of the parties, the matters are heard finally at the stage of admission.

3. Irrespective of the exhaustive arguments advanced by the learned Senior Advocates Mr. R.N. Dhorde and Mr. Rajendra S. Deshmukkh on behalf of the petitioners and all the learned Advocates for the respondents, touching number of disputed questions of facts, the matters revolve around the only question as to whether a Writ Petition under Articles 226 and 227 of the Constitution of India would be maintainable in view of the remedy of a revision under Section 70A of the Maharashtra Public Trusts Act, 1950 (hereinafter referred to as `the Act) would be the appropriate and efficacious remedy to challenge an order passed by the Deputy Charity Commissioner or the Assistant Charity Commissioner under the first proviso to sub-section (2) of Section 22 of the Act thereby provisionally accepting a Change Report submitted under Section 22(1) of the Act.

4. The facts as are relevant for deciding the Writ Petitions may be summarized as under:

(i) As usual, there has been a dispute amongst the members of a Public Trust duly registered under the Act. The petitioners belong to one group whereas the contesting respondents are from the other group. Both the sides submitted several Change Reports under Section 22 of the Act. All these Change Reports were rejected by the learned Assistant Charity Commissioner and even the appeals preferred by both the sides were dismissed. Some of those matters are now before this Court in the form of several Writ Petitions bearing Nos. 6268/2019, 6333/2019 and 6355/2019.

(ii) While all these Writ Petitions are still pending before this Court, the contesting respondents filed the present Change Report bearing No.8/2021 on 11.01.2021. Alongwith the Change Report, they also submitted an application (Exh-2) purportedly under the first proviso to sub-section (2) of Section 22 of the Act and the learned Assistant Charity Commissioner passed the impugned order on the same day granting provisional approval to the change.

(iii) Alleging that the order regarding provisional acceptance of the Change Report was obtained by suppressing various material facts and circumstances, the petitioners submitted applications (Exh-17 and Exh-17A), praying that the order be set aside or stayed. The learned Assistant Charity Commissioner rejected these applications by order dated 28. 01.2021. The petitioners are assailing both these orders, one granting provisional approval and the other refusing to recall or stay the order.

5. In accordance with the stand of the petitioners, the learned Senior Advocates extensively argued and endeavoured to demonstrate as to how the contesting respondents had practised fraud and even managed to procure the orders hand-in-gloves with the learned Assistant Charity Commissioner. They also strenuously submitted that even a proceeding has subsequently been filed before the learned Joint Charity Commissioner for transferring the Change Report enquiry to some other Assistant Charity Commissioner.

6. On a query being put to the learned Senior Advocates regarding availability of alternate and efficacious remedy, they would submit that this Court has ample powers in exercise of writ jurisdiction to set right any illegality, more so when the impugned order has been passed in violation of the fundamental rights of the petitioners. So far as the provisions of the Act are concerned, they would submit that the impugned order is not a finding and no appeal under Section 70 of the Act would lie. They would also refer to following couple of the decisions of the coordinate benches of this Court:

(i) Mukesh Nashikrao Tirpude & Anr. Vs. Wamanrao Tatobaji Kombade & Ors.; 2008(4) Mh. L.J. 562

(ii) Kashya