WP-9496-2013

-1-

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 9496 OF 2013

Samasta Dasa Mod Goghhava Panch,

Nandurbar and Ors.

…. Petitioners

Versus

Biharibhai Gopalkrushna Pandya

…. Respondent

.....

Mr. P. M. Shah, Senior Advocate i/by Mr. S. P. Shah, Advocate

for the Petitioners.

Mr. A. S. Abhyankar, Advocate h/f Mr. S. V. Natu, Advocate for

the Respondent-sole.

…..

CORAM : V. K. JADHAV, J.

RESERVED ON : 6^TH MARCH, 2018

PRONOUNCED ON : 27^TH MARCH, 2018

PER COURT:-

1.

Heard finally with consent at admission stage.

2.

Being aggrieved by the judgment and order dated

03.09.2012 passed in Civil Appeal No. 38 of 2010, the original

applicants have preferred this Writ Petition.

3.

Brief facts giving rise to the present Writ Petition are as

follows:

WP-9496-2013

-2-

a.

The petitioner no. 1 is a public trust and the petitioner nos.

2 and 3 are the trustees and office bearers of petitioner no.1-

public trust. The petitioner no.1-public trust owns CTS No. 37 at

Nandurbar alongwith other properties. In CTS No. 37, there is a

temple of God Shriram. The said Temple is on the ground floor

and the priest of the temple is allowed to occupy the first floor of

the building for his residence. The respondent was working as a

Pujari at the said temple belonging to the petitioner-trust. He

was permitted to occupy the premises in the temple for his

residence. The dispute relates to this premises which is occupied

by the respondent.

b.

The petitioners had filed Application No. 5 of 2009 against

the respondent under Sections 41E, 41A, 41B and 41 of the

Maharashtra Public Trusts Act, 1950 (for short, “Act of 1950”)

for issuance of injunction order restraining the respondent to

enter into, use and occupy the suit portion which is the first floor

portion of the temple of God Shriram situated in CTS No. 37 of

Nandurbar and further directions under Sections 41A and 41E of

the Act of 1950 to the respondent to hand over vacant possession

of the suit portion. The petitioners also claimed for damages

WP-9496-2013

-3-

from the respondent for his wrongful and illegal occupation and

user of the suit portion since 01.09.2008 at the rate of

Rs.3,000/- per month with periodical increase as detailed in

prayer clause (C) of the Petition.

c.

The learned Joint Charity Commissioner, by the judgment

and order dated 04.10.2010 in Application No. 5 of 2009, has

restrained the respondent from misusing and damaging the

immovable property of the trust and further directed the

respondent to vacate the trust premises occupied by him

immediately and if failed to vacate the premises, the applicants

(petitioners herein) shall take recourse of law and recover

damages at the rate of Rs.3,000/- per month from the date of

this order and the same shall be increased by Rs.1,000/- per

month till vacating the premises.

d.

Being aggrieved by the same, the respondent herein has

preferred Civil Appeal No. 38 of 2010 before District Court,

Nandurbar and the learned District Judge-1, Nandurbar, by the

impugned judgment and order dated 03.09.2012, allowed the

Appeal with costs and quashed and set aside the order passed by

WP-9496-2013

-4-

the Joint Charity Commissioner dated 04.10.2010 in Application

No. 5 of 2009 and further rejected Application No. 5 of 2009.

Hence this Writ Petition.

4.

Mr. P.M. Shah, learned senior counsel for the petitioners

submits that the learned District Judge has failed to appreciate

the provisions of Sections 41A and 41E of the Act of 1950 and

the interpretation put up by the learned District Judge is

unsustainable in law. The mandate of provisions of Section 41A

empowers the Commissione