The main legal point established is the high standard of proof required for the removal of trustees under Section 41-D of the Bombay Public Trust Act, 1950, and the necessity of proving dishonesty or wrongful exercise of authority.

JUDGMENT :

1. The dismissal of the proceeding under Section 41-D (5) of the Bombay Public Trust Act, 1950 (The Act, 1950) vide judgment and order dated 30th January, 2014 passed by the District Judge-II, Nagpur upholding the removal of the appellants from the posts of President, Secretary and Trustees of the Trust, by the Joint Charity Commissioner, Nagpur vide its judgment and order dated 3rd April, 2012, has been questioned in the present appeal.

2. The facts leading to the present appeal are that :

The appellant is the founder trustee of Shubham Bahuuddeshiya Shikshan Sanshta, Waddhamana, Nagpur and was the President of the said Trust, which was registered under the provision of Bombay Public Trust Act, 1950, (hereinafter in short “the Act, 1950”).

3. The appellant No.2 is the Headmistress of the school Swami Vivekanand School, Waddhamana, Nagpur run by the trust and ex-officio Secretary of the School Committee of the said school, constituted under the provisions of Maharashtra Employees of Private School (Regulations) Act, 1977.

4. The respondent nos.1 to 7 are claiming to be trustees whereas the appellants dispute the same.

5. The respondent nos.1 to 7 filed an application under Section 41-D against the appellants and one Shri Nandu Namdeo Jaipurkar, the respondent No.8, for removal of them from their respective posts, which they were holding in the said trust.

6. The allegations against the appellants and respondent No.8 were of misappropriation of non-salary grant and amount of fees of the students and procurement of hand loan without any resolution of the Managing Committee and in violation of Section 36(A) of the Act, 1950.

7. The appellant and the respondent No.8 resisted the application under Section 41-D of the Act 1950, by filing joint reply and thereby denied all the allegations made in the said application.

8. On 25th November, 2009, the learned Joint Charity Commissioner framed charges on the basis of pleadings. The charges are as follows:

(1) That you have misappropriated the amounts of the grants and other such amount from the fees of the students and utilised it for your own purposes and/or dealt with such amount improperly.

(2) That you have also committed malfeasance and deliberately neglected to discharge the duty and accordingly you shall be tried by me for above said purpose.

9. Both the parties led oral evidence considering which alongwith documentary evidence the learned Joint Charity Commissioner held that the charge No.2 was partly proved against the appellants and accordingly, in exercise of powers under Section 41-D of the Act 1950, the appellants were removed from the posts of President and Secretary, held by them, vide judgment and order, dated 3rd April, 2012.

10. Feeling aggrieved by the said judgment and order, the appellants preferred an application under Section 41-D(5) of the Act, 1950, on various grounds mentioned in the said application.

11. In this proceeding the respondent Nos.1 to 7 filed cross objection under Order 41, Rule 22 of the Code of Civil Procedure seeking thereby the findings that the charge No.2 is proved against the appellants, which was rejected.

12. The learned District Judge-II, Nagpur dismissed the Regular Civil Application No.17 of 2012 filed by the appellants vide its judgment and order dated 30th January, 2014, which is assailed in the present appeal.

13. Heard Shri Shambharkar, learned counsel for the appellants, Shri Jibhkate, learned counsel for the respondent Nos.1, 2, 5 and 7, learned Senior Advocate Shri R.L. Khapre, assisted by Shri D.R.Khapre, learned counsel for the respondent Nos.3 and 4, learned A.G.P for the respondent No.9. None for the respondent nos. 6 and 8, though served on merit.

14. Shri Shambharkar, learned counsel for the appellants, submits that both the authorities below have failed to consider that, after removal of the respondent Nos.1 to 7 as Trustees, they cannot maintain the application under Section 41-D of the Act 1950 against the appellants or even