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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.7206 OF 2021

Smt.Manda Vasant Bhangire & Anr.

… Petitioners

V/s.

Mr.Kalidash Tukaram Ghule & Ors.

… Respondents

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Mr.Surel Shah i/b. Mr.Abhishek Deshmukh, for the Petitioners.

Mr.Siddhartha R.Ronghe, for Respondent Nos.1 to 6 & 8.

Mr.S.H.Kankal, AGP for the State.

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C0RAM : G. S. KULKARNI, J.

DATE : 28 October, 2021

PC :

1.

Heard Mr.Shah learned Counsel for the petitioners and Mr.Ronghe,

learned Counsel for respondent nos.1 to 6 & 8.

2.

Challenge in this petition is to an order passed below Exhibit 3 in

Application no.34 of 2021 filed by respondent nos.1 to 6 and 8 under

Section 41E of the Maharashtra Public Trust Act,1950. By the impugned

order, the petitioners are restrained by a temporary injunction from entering

into the trust property and carrying out encroachment whatsoever nature

over the trust property Survey No.24 till further order. It is also directed

that the petitioners or anybody on behalf of them are restrained from

running any business in the name and style PUB-24 over the trust property.

There is also a temporary injunction restraining the petitioners from

creating third party interest in the trust property Survey No.24. In passing

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PRASHANT

VILAS

RANE

Digitally

signed by

PRASHANT

VILAS RANE

Date:

2021.10.29

11:11:00

+0530

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such order, the learned Joint Charity Commissioner has referred to

paragraphs (3) and (9) of the earlier order which was passed against the

petitioners of an injunction of a similar nature. It is on such basis, the

impugned order has been passed.

3.

Mr.Shah has several contentions in assailing the impugned order

passed by the Joint Charity Commissioner. He submits that the petitioners

are carrying on business on the property which is not a trust property and

which has been declared as Imam land and which is subject matter of

independent litigation. He submits that considering the nature of the order,

such an order ought to have been passed only after hearing the petitioners

and there was no need for the Joint Charity Commissioner to pass an ex-

parte order.

4.

Mr.Ronghe, learned Counsel, who has instructions to appear for

respondent nos.1 to 6 and 8. He submits that the order is a reasoned order,

in the fact situation the petitioner could have approached the authority-the

Joint Charity Commissioner making an application for vacating of said

order or file an appeal as provided under sub-section 5 of Section 41E.

5.

Having heard the learned Counsel for the parties and having perused

the impugned order, in my opinion, there are two remedies available for the

petitioners, either to make an application to the Joint Charity

Commissioner for vacating the impugned order, or to file an appeal pointing

out the rights of the petitioners to undertake the business in the premises of

which there is now a temporary injunction restricting them by the

impugned order and/or espousing the remedy of an appeal under sub-

section (5) of Section 41E of the Act, which clearly provides that a trustee

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or a person against whom “order of injunction” or “any other order” under

Section 41E is passed, has a remedy to file appeal before the Court, within

ninety days of the date of communication of such order. In view of the

above clear provision in law, in my opinion, it is not appropriate for this

Court to exercise jurisdiction under Article 226 or 227 of the Constitution.

6.

The petition is accordingly disposed of, however, with liberty to the

petitioners to take recourse to the remedies as available in law. All

contentions in that regard are expressly kept open.

7.

In case the petitioners file an appropriate proceedings, the petitioners

would certainly be at liberty to request such forum to take up the

proceedings as expeditiously as possible.

8.

It is clarified that I have not examined the merits of the rival

contentions of the part