First Appeal No. 1199 of 2019

15th January 2020

Petitioner Counsel: Shri Apurv De Dr. Anjan De
Respondent Counsel: Shri H. R. Dhumale Shri A. D. Dangore Shri C. A. Babrekar Shri R. G. Jaiswal
Act Name: Maharashtra Public Trusts Act, 1950

Section :
Section 41-D Maharashtra Public Trusts Act, 1950 Section 50A(4) Maharashtra Public Trusts Act, 1950

Cases Cited :
Para 7: Haryana State Industrial Development Corporation Limited Vs. Mawasi and others, [(2012) 7 SCC 200]

JUDGEMENT

1. Admit.

2. Heard final ly with the consent of learned counsel for the parties.

3. This is an appeal against the judgment of the Joint Charity Commissioner, Amravati Region, Amravati passed in Application No. 04/2008 dated 2-5-2019. Application was decided by the Joint Charity Commissioner after remand of appeal by this Court by judgment dated 29-6-2018 in Second Appeal No. 28/2017.

4. The facts giving rise to the appeal can be summarized as under :
(I) Misc. Civil Application No. 20/2016 was filed before the Joint Charity Commissioner, Amravati. The order was passed on 16-12-2015 by allowing the said application. That order was challenged before the District Judge, Amravati. The District Judge, Amravati allowed the appeal. Hence, the second appeal was filed before this Court. This Court remanded the matter to the Joint Charity Commissioner by passing following order.
(i) The order passed in Misc. Civil Application No. 20/2016 dated 16/11/2016 is set aside.
(ii) The proceedings are remanded to the learned Joint Charity Commissioner who shall grant opportunity to the parties to lead further evidence besides the evidence that is already on record. Till the said proceedings are decided, direction Nos. 3 to 7 issued by the learned Joint Charity Commissioner in the order dated 16/12/2015 shall continue to operate. This arrangement would be without prejudice to the rights of the parties and the learned Joint Charity Commissioner would be free to pass appropriate orders in the light of the final conclusion arrived at in proceedings under Section 41-D of the said Act.
(iii) The proceedings be decided expeditiously on their own merits and in accordance with law.
(iv) The Second Appeal is partly allowed in aforesaid terms and disposed of with no order as to costs.
(II) Respondents filed application under Section 41D of the Maharashtra Public Trusts Act before the Joint Charity Commissioner for removal of appellants as trustees. It was the allegations against the appellants that they have misappropriated the property of the trust. Learned Joint Charity Commissioner come to the conclusion that charge in respect of misappropriation is not proved against the appellants. Therefore, application came to be dismissed and following directions were given to the Assistant Charity Commissioner by order dated 2-5-2019.
(2) The Assistant Charity Commissioner-3, Amravati is directed to consider the candidature of non applicants/trustees along with adhoc trustees while finalising the first board of trustees of the trust as per the scheme settled for the trust in Scheme Appl. No. 169/2018 and then to declare the first board of trustees finally.
(3) The non applicants to approach the learned Assistant Charity Commissioner-3 with their bio-data within one month from the date of this order, in default, the learned Assistant Charity Commissioner-3 will be at liberty to declare or finalise the first board of trustees.

5. In the present appeal, above clauses (2) and (3) of the operative order are challenged. It is the contention of the appellants that once the Joint Charity Commissioner comes to the conclusion that the appellants have not committed any misappropriation and therefore, application came to be rejected. Application under Section 41D is dismissed. It is the contention of the appellants that the Joint Charity Commissioner has wrongly given directions in clauses (2) and (3) of the impugned order. Learned Advocates for the appellants prayed to quash and set aside the impugned judgment.

6. Heard learned Advocates Dr. Anjan De with Shri Apurv De for the appellants. Advocates for the appellants have vehemently submitted that the order passed by the Joint Charity Commissioner in the impugned judgment is perfectly legal and correct but committed wrong by giving directions as per clauses (2) and (3) of the operative order. Learned Advocates have submitted that once the application is dismissed, there was no alternative but to restore the position of appellants as trustees. Once they are restored as trustees, then there was no question of election afresh of board of trustees. On this ground, learned Advocates have submitted that the order passed by Assistant Charity Commissioner dated 2-7-2019 is illegal and, therefore, liable to be quashed and set aside.

7. Learned Advocate Shri Apurv De has submitted that appellants could not file any application before the Assistant Charity Commissioner or the Joint Charity Commissioner to review the order. In support of his submissions, he pointed out decision of the Apex Court in the case of Haryana State Industrial Development Corporation Limited Vs. Mawasi and others [(2012) 7 SCC 200] and submitted that review was not permissible and, therefore, not applied.

8. Heard learned Assistant Government Pleader Shri Dhumale for the respondent no. 1, Shri Dangore, learned Advocate for the respondent nos. 2 to 4 and Shri Babrekar with Shri Jaiswal, learned Advocates for the respondent nos. 6 to 11 and 13 to 16.

9. Learned Advocates for the respondent nos. 6 to 11 and 13 to 16 have submitted that when this Court has granted stay on 26-7-2019, that time, judgment of the Assistant Charity Commissioner was already passed. Therefore, the judgment of the Assistant Charity Commissioner cannot be said to be wrong/illegal. Learned Advocates have pointed out the provisions of Section 50A(4) of the Maharashtra Public Trusts Act and submitted that remedy for the appellants is to challenge the judgment of the Assistant Charity Commissioner by filing appeal. The appeal is not filed by the appellants, therefore, they cannot say that judgment of the Assistant Charity Commissioner is wrong.

10. Learned Advocates for the appellants have given much more emphasize on the provisions of Section 41D of the Maharashtra Public Trusts Act stating that once the application under Section 41D is rejected, there was no option to the Joint Charity Commissioner to give any directions as per clauses (2) and (3). It is pertinent to note that this Court while deciding Second Appeal No. 28/2017 has given direction to the Joint Charity Commissioner, “to give an opportunity to the parties to lead further evidence besides the evidence that is already on record. Till the said proceedings are decided, direction Nos. 3 to 7 issued by learned Joint Charity Commissioner in the order dated 16/12/2015 shall continue to operate. This arrangement would be without prejudice to the rights of the parties and the learned Joint Charity Commissioner would be free to pass appropriate orders in the light of the final conclusion arrived at in proceedings under Section 41D of the said Act.”

11. During the pendency of the proceedings, the adhoc trustees were appointed and were continued till the decision of the application by the Joint Charity Commissioner. As per the contention of the learned Advocates for the appellants, that Court cannot pass order except to reject or allow the application. This contention cannot be accepted as while doing the justice, the Court has ample powers to pass appropriate orders. The Joint Charity Commissioner has recorded its findings in paragraph nos. 21 and 22 of the impugned judgment as under :
21. Certain subsequent events occurred during the pendency of this matter need to be taken into consideration. As per the directions of this authority in first judgment, of this matter, the learned Assistant Charity Commissioner appointed adhoc trustees for the trust by following due procedure i.e. by inviting applications and selecting proper persons from them. Not only this but the learned Assistant Charity Commissioner has also decided the scheme application filed by some of the persons and settled the scheme for the trust and directed that adhoc trustees appointed by her shall continue as first board of trustees till the decision in this matter and on decision the final directions will be issued in respect of first board of trustees.
22. Since the appointment of adhoc trustees they are looking after the management of the trust. There is no complaint against them received by this authority but now as the charges levelled against the non applicants are not proved their status as recorded trustees of the trust would revert back. But considering the subsequent development of framing of the scheme for the trust and selection of adhoc trustees by following due procedure it is necessary to issue directions to the learned Assistant Charity Commissioner to consider the candidature of non applicants i.e. recorded trustees of the trust for their appointment in the first board of trustees alongwith already selected adhoc trustees and then to decide or finalise the first board of trustees. In the result the application will have to be rejected by issuing above directions. Hence the following order.

12. Learned Joint Charity Commissioner recorded its findings that there was allegations against the appellants about the misappropriation of funds/property of the trust. Those charge against the appellants is not proved. Finding is also recorded by learned Joint Charity Commissioner that the ad-hoc trustees are looking after the management of the trust. There is no complaint against them. Therefore, directions were given to the Assistant Charity Commissioner, viz. (i) to consider the candidature of non applicants/trustees along with adhoc trustees while finalising the first board of trustees of the trust as per the scheme settled for the trust in Scheme Appl. No. 169/2018 and then to declare the first board of trustees finally and (ii) the non applicants to approach the Assistant Charity Commissioner with their bio-data within one month from the date of the order, in default, the Assistant Charity Commissioner will be at liberty to declare or finalise the first board of trustees.

13. As per the directions given by the Joint Charity Commissioner, the Assistant Charity Commissioner started the proceeding to comply the order of the Joint Charity Commissioner dated 2-5-2019. The Assistant Charity Commissioner passed order dated 2-7-2019. From the perusal of order, it is clear that the non-applicants (appellants) not appeared before the Assistant Charity Commissioner. They were at liberty to approach the Assistant Charity Commissioner and raise an objection. Moreover, the impugned judgment is challenged before this Court. On 26-7-2019, this Court has passed order and granted stay to the impugned judgment. It is surprising to note that order dated 2-7-2019 was not pointed out to this Court when this Court has granted stay to the impugned judgment. It is very clear that when the stay is granted by this Court on 26-7-2019, before that, there was no any stay and the Assistant Charity Commissioner was to comply the order of the Joint Charity Commissioner dated 2-5-2019. Therefore, it cannot be said that order passed by the Assistant Charity Commissioner on 2-7-2019 is illegal.

14. Learned Advocates for the appellants have submitted that the order passed by the Joint Charity Commissioner while directing the Assistant Charity Commissioner as per clauses (2) and (3) is wrong. This cannot be accepted because while remanding the matter, Court can direct the trial Court to give an opportunity to the parties. For doing justice, certain direction can be given by the Court. Therefore, clause (2) and clause (3) of the operative order of Joint Charity Commissioner cannot be said to be wrong. Cited judgment of Hon’ble Apex Court by the side of the appellants is on different footings, hence, it is not applicable to the case in hand. In that view of the matter, the appeal is dismissed with no order as to costs.

15. Pending civil applications are accordingly disposed of.