Dhananjay Sukhdev Sal Vithal Vs Vithal Shikshan Va Sanshodhan Sanstha and Ors.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 1754 OF 2004

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 Dhananjay Sukhdev Sal Vithal .. Petitioner

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V/s

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 Vithal Shikshan Va Sanshodhan Sanstha
 & Ors. .. Respondents

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 Mr.V.B. Naik for the Petitioner.

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 Mr.S.S. Patwardhan for Respondents No.5 and 6.

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 CORAM : D.G. KARNIK, J.

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 DATE : 24TH APRIL 2007

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P.C. :

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 1. Heard.

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 2. By this petition, the Petitioner takes exception
 to the judgment and order dated 24th December 2003
 passed by the III Additional District Judge, Pandharpur
 allowing Misc. Civil Appeal Nos.158 and 159 of 2000.

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 3. The Respondent No.1 is a Public Trust and the
 Respondents No.3 to 6 are its Trustees. The Petitioner
 also claims to be a Trustee and President of the
 Respondent No.1 Trust. The Respondents No.2 and 7 also
 were the Trustees of the Respondent No.1 Trust, but are
 stated to have resigned as Trustees. The Respondents

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 No.8 to 10 claim to be beneficiaries and persons
 interested in the Trust.

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 4. The Respondents No.5 and 6 filed an application
 bearing No.1 of 2000, under section 41-E of the Bombay
 Public Trust Act, 1950 (for short "B.P.T. Act") before
 the Joint Charity Commissioner, Pune alleging that the
 Petitioner along with the Respondent No.7 herein were
 collecting money illegally on behalf of the Trust. It
 was alleged that the money so collected was used for
 personal gains and not accounted for by the Petitioner
 and the Respondent No.1 and, therefore, an injunction
 was claimed restraining them from collecting any money
 or donations on behalf of the Respondent No.1. The
 Respondents No.5 and 6 also claimed that the Petitioner
 and the Respondent No.7 should be restrained from
 obstructing them from managing the affairs of the Trust.
 They also prayed for an injunction restraining the
 Petitioner and the Respondent No.7 from entering into
 the property of the Trust on various grounds mentioned
 in the application. It appears that several interim
 applications were filed in the main Application No.1 of
 2000 and at least two interim orders were challenged
 before this Court. However, the challenge herein is
 restricted to the impugned order dated 24th December
 2003.

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 5. The Petitioner herein made an interlocutory
 application (at Exhibit-35) in the main Application No.1
 of 2000 on 9th November 2000. In the said application,
 the Petitioner prayed that the Trustees of the
 Respondent No.1 Trust should be restrained from
 operating the bank account without the joint signature
 of the Petitioner. By an order dated 21st November
 2000, the Joint Charity Commissioner directed that the
 Respondent No.1 Trust should not operate the bank
 account except under the joint signature of the
 Petitioner. He also ordered that two change reports
 dated 23rd January 2000 and 4th June 2000 should be
 heard expeditiously by the Assistant Charity
 Commissioner. That order was challenged before the
 District Court, Pandharpur in Misc. Civil Appeal
 Nos.158 and 159 of 2000. By the impugned order dated
 24th December 2000, the learned III Additional District
 Judge allowed the two appeals and set aside the order of
 the Joint Charity Commissioner dated 21st November 2000.

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 6. Learned counsel for the Petitioner submitted
 that the additional District Judge erred in setting
 aside the order of the Joint Charity Commissioner. He
 submitted that though the order was not strictly in
 accordance with the powers of the Joint Charity

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 Commissioner in an enquiry under section 41-E of the
 Bombay Public Trust Act, in the facts and circumstances,
 his order was just, fair and equitable and, therefore,
 ought not to have been set aside by the District Court.
 He further submitted that in any event, the direction
 given by the Joint Charity Commissioner to the Assistant
 Charity Commissioner to expedite the hearing of the
 change reports dated 23rd January 2000 and 4th June 2000
 was just and proper and within the competence of the
 Joint Charity Commissioner and, therefore, the District
 Court erred in setting aside even that direction.

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 7. It may be noted that the present proceeding

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 arises out of an interlocutory application at
 Exhibit-35, made in an enquiry under section 41-E of the
 B.P.T. Act. Section 41-E of the Act reads as under:-

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"41-E. Power to act for protection of

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Charities.

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 (1) Where it is brought to the notice of the
 Charity Commissioner either by the Deputy or
 Assistant Charity Commissioner through his
 report or by an application by at least two
 persons having interest supported by affidavit:

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 (a) that any trust property is in danger
 of being wasted, damaged or improperly
 alienated by any trustee or any other

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 person; or

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 (b) that the trustee or such person
 threatens or intends to remove or
 dispose of that property,

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 the Charity Commissioner may by order grant a
 temporary injunction or make such other order
 for the purpose of staying and preventing the
 wasting, damaging, alienation, sale, removal or
 disposition of such property, on such terms as
 to the duration of injunction, keeping an
 account, giving security, production of the
 property or otherwise as he thinks fit.

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 (2) The Charity Commissioner shall in such
 cases, except where it appears that the object
 of granting injunction would be defeated by
 delay, before granting an injunction, give
 notice of the facts brought to his notice to the
 trustee, or the person concerned.

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 (3) After hearing the trustee or person

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 concerned and holding such inquiry as he thinks
 fit, the Charity Commissioner may confirm,
 discharge or vary or set aside the order of
 injunction or pass any other appropriate order.

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 (4) In case of disobedience or breach of any
 injunction, any of its terms or any order passed
 under this section, the Charity Commissioner may
 apply to the Court, which may, after hearing the
 Charity Commissioner and the party affected,
 order the property of such person, guilty of
 such disobedience or breach to be attached, and
 may also order such person to be detained in
 jail for a term not exceeding six months. No
 attachment under this sub-section shall remain
 in force for more than one year, at the end of
 which time, if the disobedience of breach
 continues, the property attached may be sold and
 out of the proceeds, the Court may award such
 compensation as it thinks fit, and shall pay the
 balance, if any, to the person entitled thereto,
 and thereupon, the temporary injunction granted,
 or any order passed, by the Charity
 Commissioner, under this section, if in force
 shall stand vacated, or as the case may be
 cancelled.

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 (5) A trustee or a person against whom the order
 of injunction or any other order under this
 section is passed may, within ninety days of the
 date of communication of such order, appeal to
 the Court against such order.

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 (6) The order of the Court attaching the
 property of such person or detaining such person
 in civil prison shall be a decree appealable to
 the High Court.

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 (7) The order of the Charity Commissioner shall,
 subject to any order of the Court or in appeal,
 be final."

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 8. The enquiry under section 41-E of the B.P.T.
 Act is limited. Proceedings under section 41-E of the
 B.P.T. Act arise where two or more persons interested
 in the application make an application that any property
 of the Trust is being wasted, damaged or improperly
 alienated by any trustee or any other person or that a
 trustee or any person threatens or intends to remove or
 dispose of that property. In my view, in such an
 enquiry under section 41-E of the B.P.T. Act, an
 interlocutory application of the nature of Exhibit-35

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 was totally uncalled for. It was beyond the scope of
 the enquiry under section 41-E of the B.P.T. Act. By
 that interim, the Petitioner claimed to be a Trustee and
 the President of the Respondent No.1 Trust and claimed
 an injunction restraining the Respondent No.1 by an
 order and injunction from operating the bank account
 without his joint signature. This was totally beyond
 the scope of the enquiry in the application under
 section 41-E of the Act made by the Respondents No.5 and
 6. The allegations made by the Respondents No.5 and 6
 in the main petition were that the Petitioner along with
 others were illegally collecting the money on behalf of
 the Trust and was misutilising the money so collected
 for personal use. Thus, the main enquiry was relating
 whether the Petitioner was misutilising the property of
 the Trust including the money of the Trust. As the
 Petitioner has denied these allegations, the truth or
 otherwise of the said allegations would have to be
 decided in the enquiry under section 41-E of the Act.
 In such an inquiry, there is no scope for the Petitioner
 to claim an injunction of the nature, which he claimed
 by the interlocutory application at Exhibit-35. The
 Additional District Judge, in my view, was right in
 holding that the application at Exhibit-35 was not
 maintainable. No error can be found in the decision of
 the learned Additional District Judge.

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 9. For the reasons aforesaid, there is no merit in

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 the petition. The petition is accordingly rejected

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 summarily.

¶49

 (D.G. KARNIK, J.)

Dhananjay Sukhdev Sal Vithal v. Vithal Shikshan Va Sanshodhan Sanstha and Ors.

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Dhananjay Sukhdev Sal Vithal v. Vithal Shikshan Va Sanshodhan Sanstha and Ors.

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