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Judgment
A.S. Chandurkar, J
Rule. Rule made returnable forthwith and heard learned counsel for the parties at length.
The challenge raised in this writ petition is to the order dated 16.04.2018 passed by the learned Assistant Charity Commissioner in proceedings
under Section 41 A of the Maharashtra Public Trusts Act, 1950 (for short, ‘the said Act’) by which the petitioners have been directed not to
restrain the respondent no.1 from taking part in the management of the public Trust by ignoring the effect of Resolution dated 22.02.2017 passed by
the public Trust.
The facts in brief giving rise to the present proceedings are that the petitioner nos. 1, 2 and 3 are trustees of a registered public Trust. They are also
the members of the Council of Promoters of the Public Trust. The Trust has its own rules and regulations. The constitution of the Trust provides for
formation of a Council of Promoters as well as a Council of Administrators. The respondent nos. 1 and 2 claim to be persons interested in the public
Trust as per the provisions of Section 2(10) of the said Act. It is their case that they had initiated proceedings under Section 41 D of the said Act
against the petitioners in view of their alleged acts of malfeasance and misfeasance in connection with the affairs of the Trust. The said proceedings
were stated to be pending. The respondent nos. 1 and 2 had also moved an application under Section 50 A(1) of the said Act for framing of a scheme
for the proper administration of the public Trust. After receiving notices of these proceedings, it is the case of the respondent nos. 1 and 2 that the
petitioners started giving them threats to withdraw both the proceedings. The respondent no. 1 on 25.02.2017 received a communication in which it
was stated that from 24.02.2017 the respondent no.1 had been suspended from all responsibilities in the public Trust and that he should return all
documents in his possession to the Trust. On receiving the aforesaid letter, the respondent nos. 1 and 2 filed an application under Section 41 A of the
said Act praying that a direction be issued to the petitioners not to act upon the letter dated 25.02.2017 by holding that the said letter was against the
provisions of the constitution of the public Trust and hence not binding. Further directions were sought that the petitioners should also withdraw the
said letter. It was also prayed that the petitioners be restrained from taking any policy decision during the pendency of the proceedings under Section
41 D and 50 A of the said Act.
The petitioners filed their reply to the aforesaid proceedings and raised a preliminary objection as to the tenability of the said proceedings. It was
stated that the relief sought in the application could not be granted under Section 41 A of the said Act. The other allegations as made in the application
were also denied.
The learned Assistant Charity Commissioner heard both the parties and recorded a finding that the action on the part of the petitioners in expelling
the respondent no.1 from all responsibilities was arbitrary and against the existing bye-laws of the Trust. The resolution passed in that regard was
ambiguous and therefore the action taken was not in accordance with the constitution of the Trust. It was further held that since the powers exercised
under Section 41 A of the said Act were administrative in nature the said Authority had no jurisdiction to grant the relief of declaration that was sought
in the said application. The impugned action resulted in preventing the respondent no.1 from approaching any legal forum and the same was therefore
not in accordance with law. Hence by the order dated 16.04.2018 the application was partly allowed and the petitioners were restrained from
preventing the respondent no.1 from taking part in the management of the Trust. Being aggrieved, the petitioners have challenged the said order.
Shri A.C.Dharmadhikari, learned counsel for the petitioners submitted that considering the nature of jurisdiction that is available for being exercised
under Section 41 A of the said Act, it was clear that the learned Assistant Charity Commissioner was empowered to exercise administrative powers
under said provision. The said proceedings did not contemplate adjudication of any lis nor was any quasi-judicial adjudication permissible. Under the
provisions of Section 41 A of the said Act, directions could be issued only if the property of the Trust was in danger of being wasted, damaged or
alienated by the trustees. Administrative directions could be issued only with regard to administration of the Trust and no directions of the nature of
which the learned Assistant Charity Commissioner had issued while passing the impugned order could be issued. It was open for the respondent nos. 1
and 2 to have invoked remedies available to them for challenging the expulsion of the respondent no.1. Without undertaking any adjudication as to
whether it was necessary to issue directions in the larger interest of the public Trust, the impugned order had been passed. Moreover having recorded
a finding that grant of any declaration was not permissible under Section 41 A of the said Act, the impugned order in effect grants relief that would
normally have followed the grant of such declaration. The relief in the nature of injunction had been granted for unspecified period which was also
contrary to the spirit of the provisions of Section 41 A of the said Act. In support of his submissions, the learned counsel placed reliance on the
decisions in Raghunath s/o Motiram Patil Vs. State of Maharashtra and others 2008 (2) Mh.L.J. 7,8 Damodhar Jairam Sao Vs. Deputy Charity
Commissioner, Nagpur and others. 2011 (6) Mh.L.J. 431 and Vidarbha Youth Welfare Society, Amravati and others Vs. Sandip Ram Meghe and
others, 2016 (5) Mh.L.J. 711. He thus submitted that the impugned order was liable to be set aside.
Shri A.P.Thakre, learned counsel for the respondent nos. 1 and 2 on the other hand supported the impugned order. According to him as the
respondent nos. 1 and 2 were persons interested in the affairs of the Trust, they had initiated proceedings in the better interest of the public Trust. The
proceedings under Section 41 D and Section 50 A of the said Act were pending. With a view to prevent the respondent nos. 1 and 2 from continuing
with those proceedings the communication dated 25.02.2017 came to be issued. Since such letter resulted in seeking to prevent the respondent nos. 1
and 2 from taking steps in the interest of the public Trust, the provisions of Section 41 A of the said Act were rightly invoked by them. He referred to
various clauses in the constitution of the public Trust and submitted that the petitioners were misusing their authority as trustees. In fact the respondent
no.1 was a founder member of the Trust and therefore by moving such application under Section 41 A of the said Act, he had taken steps in the larger
interest of the public Trust. According to the learned counsel, the learned Assistant Charity Commissioner had jurisdiction to entertain and adjudicate
the proceedings under Section 41 A of the said Act in such situation. The learned counsel placed reliance on the decisions in Vanmala Manoharrao
Kamdi and others Vs. Deputy Charity Commissioner, Nagpur and others, 2012 (3) Mh.L.J. 594 and Devidas Govindrao Kirpane & Ors. Vs.
Dy.Charity Commissioner, Nagpur and Ors, in Writ Petition No.2304/2013 decided on 30.07.2013 to urge that no interference with the impugned order
was called for. At the highest, this Court could restrict the period of operation of the directions issued by the learned Assistant Charity Commissioner.
We have heard the learned counsel for the parties at length and we have given due consideration to the rival submissions. The dispute that requires
adjudication is based on the nature of power that is available for being exercised under the provisions of Section 41 A of the said Act. Section 41 A of
the said Act reads thus:
41 A. Power of Commissioner to issue directions [for proper administration of the trust]
(1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person
connected therewith, to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appropriated and
applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees of such person if he
finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of.
[Provided that, if any application is made by the trustee of any trust for seeking directions under sub-section (1), the Charity Commissioner shall
decide such application within three months from the date of its receipt and if it is not practicable so to do, the Charity Commissioner shall record the
reasons for the same.]
(2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1).
Perusal of the aforesaid provision indicates that with a view to ensure that the Trust is properly administered and income thereof is properly accounted
or duly appropriated and applied to the objects and for the purposes of the public Trust, the Charity Commissioner is empowered to issue directions to
any trustee from time to time. Similarly directions can be issued if it is found that any property of the Trust is in danger of being wasted, damaged,
alienated or wrongfully sold. Thus the interest of the public Trust has been given paramount importance and unless it is shown that in absence of any
directions being issued, there is likelihood that the Trust would not being properly administered or income thereof would not being properly accounted
for or applied to the objects for the purposes of the Trust, there would be no occasion to issue such directions. The powers exercised under Section 41
A of the said Act have been held to be administrative in nature in Vanmala Manoharrao Kamdi and others (supra). It has been held therein that unless
there is satisfactory material available warranting issuance of such directions, jurisdiction under Section 41 A of the said Act cannot be exercised. It is
only after arriving at a subjective satisfaction that it is imperative to intervene to safeguard the interests of the public Trust that the Authority can issue
directions in relation to property of the Trust or for its proper administration. In Raghunath Motiram Patil (supra), it has been held that the Charity
Commissioner is not expected to adjudicate upon a lis. He is not supposed to adjudicate upon rights of parties nor is he expected to remove a trustee
or appoint a trustee. He has to ensure that the Trust is properly administered and its income is properly and duly appropriated and applied to the
objects of the public Trust.
From the aforesaid decisions it becomes clear that the sine qua non for exercise of power under Section 41 A of the said Act is the existence of a
situation that results in the Trust not being properly administered or its income not being properly utilized for the objects of the Trust. Similarly only on
the existence of some material that the property of the Trust is in danger of being wasted or alienated that the occasion to issue directions under
Section 41 A of the said Act would arise. Primacy therefore is given to the public Trust as regards its proper administration. Needless to state that in
the absence of such situation being brought to the notice of the Charity Commissioner, there would be no occasion for issuance of such directions in
the interest of the public Trust.
In the aforesaid backdrop, if the application moved by the respondent nos. 1 and 2 is perused, it becomes clear that according to the said
respondents as they had initiated proceedings under Section 41 D and 50 A of the said Act, the petitioners were agitated and they wanted said
respondents to withdraw the said proceedings. On that basis letter dated 25.02.2017 came to be issued to them. Except the averments that the
proceedings with regard to mismanagement and misadministration of the public Trust were pending which facts were brought to the notice of the
Authorities, there are no averments in the application as to how it was necessary in the interest of the public Trust to issue directions under Section 41
A of the said Act.
It may be noted that substantive proceedings under Section 41 D of the said Act have been filed by the respondent nos. 1 and 2 and the same are
pending adjudication before the Authorities. It is also seen from the reply filed by the petitioners that on 22.02.2017 a resolution was passed by the
public Trust dismembering the respondent no.1 from the Trust. This resolution was not challenged by the respondent nos. 1 and 2 and on the contrary
the communication dated 25.02.2017 was sought to be challenged. In absence of any available material whatsoever to indicate that the issuance of
such letter dismembering the respondent no.1 indicated that the Trust was not being properly administered or that its income was not properly
accounted or duly appropriated, there would be no occasion to issue any directions under Section 41 A of the said Act. The principal grievance of the
respondent nos. 1 and 2 was with regard to removal from membership of the respondent no.1. While simplicitor challenging the consequential
communication dated 25.02.2017 there was no occasion to invoke the jurisdiction under Section 41 A of the said Act. There is no material on record to
indicate that by issuing such letter on 25.02.2017, there was threat to the proper administration of the public Trust or that its income was not being
properly utilised. It has also not been demonstrated that by virtue of the letter dated 25.02.2017 the Authorities under the said Act had refused to
adjudicate the proceedings under Section 41 D or Section 50 A of the said Act.
Perusal of the impugned order indicates that the learned Assistant Charity Commissioner was aware that relief of declaration could not be granted
in proceedings under Section 41 A of the said Act. Except for observing that the issuance of letter dated 25.02.2017 was not in accordance with the
constitution of the Trust there is no finding recorded that a case had been made out for issuance of immediate directions under Section 41 A of the
said Act in the larger interest of the public Trust. Though resolution dated 22.02.2017 was not challenged by the respondent nos. 1 and 2, the
impugned order has the effect of restoring the position that was prevailing prior to its passing. It is found that the impugned order is unsustainable on
both counts namely absence of any jurisdictional material warranting exercise of power under Section 41 A of the said Act and issuing directions
which in no manner indicate that same would result in proper administration of the Trust.
In the light of the aforesaid discussion, the order dated 16.04.2018 passed under Section 41 A of the said Act in Application No. 18/2017 is found
to be unsustainable and the same is accordingly set aside. It is open for the respondent nos. 1 and 2 to avail appropriate remedies if they are aggrieved
by issuance of the letter dated 25.02.2017 or for that matter the resolution dated 22.02.2017. It is clarified that the present adjudication only pertains to
examining the challenge as raised to the order passed under Section 41 A of the said Act. The proceedings that are pending under Section 41 D and
Section 50 A of the said Act shall be decided on their own merits without being influenced by any observations made in this judgment.
Rule is made absolute in aforesaid terms leaving the parties to bear their own costs.