Remanded

Lobha Kanhu Naik and Ors. v. the State of Mah and Ors.

Bombay HC7 Jul 2014WP/1116/2013

Case brief

AI extract

What is this about?

High Court Bench at Aurangabad quashed an order rejecting an application under Section 41-D of the Bombay Public Trusts Act, 1950, for lack of reasons and remanded it to the Joint Charity Commissioner to decide afresh. The petitioners also sought deletion of petitioner No. 3 and respondent No. 3.

What did the court decide?

Order under Section 41-D of the Bombay Public Trusts Act, 1950 dated 20th November, 2012, quashed and set aside; matter remanded to Joint Charity Commissioner.

Lobha Kanhu Naik and Ors. Vs the State of Mah and Ors. — Service and Employment | Bombay HC (2014)

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WP1116.2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

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WRIT PETITION NO. 1116 OF 2013

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Lobha s/o. Kanhu Naik and others

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... Petitioners

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Versus

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The State of Maharashtra and others

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...Respondents

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Mr N. R. Pawade, Advocate for petitioners Mr D. V. Tele, AGP for respondent/State Mr R. R. Suryawanshi, Advocate for respondent No. 3

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CORAM : N. W. SAMBRE, J. DATED : JULY 7^TH , 2014.

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PER COURT : -

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Mr N. R. Pawade, learned Counsel for the petitioner, makes a motion for deletion of petitioner No. 3, as petitioner No. 3 instructed him not to pursue the present petition.

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Permission granted.

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Petitioner shall take appropriate steps for deletion of respondent No. 3 from the array of petitioners.

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. The present petitioners claiming to be trustee of respondent No. 3 - Shri. Ganesh Shikshan Prasarak Mandal, has questioned the order passed under Section 41-D of Bombay Public Trusts Act, 1950 (in short "said Act") passed by respondent No. 2 on 20th November, 2012, rejecting the application preferred by the present petitioners.

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The present petitioners moved an application against the respondent herein under Section 41-D of the said Act, praying therein

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WP1116.2013

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declaration, that respondent to the said application be suspended or dismissed from the Trust No. F-2022 - Shri Ganesh Shikshan Prasarak Mandal, Rupla Naik Tanda, Mahur, Tq. Mahur, Dist. Nanded. In addition the charge as were alleged in the other application under Section 41-D of the said Act against the respondent was that, he has failed to maintain the record of trust. The charges of fabrication of documents and records were also alleged against the respondent. The present respondent No. 3 is facing charges for offence punishable under Sections 420, 467, 468 read with 34 of the Indian Penal Code in Crime No. 52 of 2008. The other allegations against the respondent were that, carrying out appointments in the trust / withdrawal of salary of the teacher, granting forge membership to the family members and publishing adverse news items against the trust and so on.

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It appears that, along with the said complaint under Section 41-D of the said Act, certain documentary evidence was placed on record before the Joint Charity Commissioner. After considering the same, the Joint Charity Commissioner, Aurangabad, has passed an order on 20th November, 2012, which is impugned in the present petition.

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The learned Counsel for the petitioners submits that, the order which is impugned in the present petition passed under Section 41-D of the said Act, is required to be quashed and set aside in view of the fact that, the charges which were alleged in the complaint under Section 41-D were not at all looked into / inquired into. Even the evidence which has

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been filed before the Joint Charity Commissioner in support of the charges levelled against respondent, were not evaluated. He submits that, perusal of the order impugned reflects that except but for consideration of the argument, there are no reasons assigned in the order impugned for rejection of the application under Section 41-D.

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While countering the above referred submissions, the learned Counsel for the respondent has invited attention of this Court to the language of Section 41D of the said Act. He submits that, subjective satisfaction of the Joint Charity Commissioner is necessary for the charges levelled. He further submits that the learned Joint Charity Commissioner has evaluated the evidence in the light of the charges levelled in the application under Section 41-D of the said Act. The learned Joint Charity Commissioner having noticed that the requirement of Section 41-D was not satisfied by the present petitioners, the said authority has proceeded to pass an order dismissing the application under Section 41-D. He submits that while considering the facts of the case, the authority has also given reasoning and the case is decided by fixing reasons with facts. He submits that, the order passed by the authority does not call for any interference.

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Perusal of provisions under Section 41-D reflects that, in case if Joint Charity Commissioner notices that there is persistent default in the submission of accounts report or return which is contrary to the provisions of the said Act or a trustee continuously neglects his duty or commits any mal-feasance or misfeasance, or breach of trust in respect of the trust,

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such person is liable for action under Section 41-D. While dealing with the charges levelled against the present respondent in an application under Section 41-D, it was expected of the authority to evaluate the allegations in the light of the provisions of Section 41D(1) more particularly when the documentary evidence was brought to the notice of the authority.

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Perusal of the impugned order reflects that, the learned authority has considered the submissions of the petitioners and that of the respondent and has reached to a conclusion that the petitioner has miserably failed to make out case against the respondent. The reasons which are supposed to be lifeline of an order so as to communicate the mind of the authorities to the parties concerned as to what weighted before the authority while passing the order is absent in the order impugned. In that view of the matter, as the reasons are not recorded by the authority while passing the order impugned dated 20th November, 2012 passed below Exh. E in Application No. 8 of 2010 by the Joint Charity Commissioner, Aurangabad Division, Aurangabad. The same is hereby quashed and set aside. The matter is remanded back to the Joint Charity Commissioner, Aurangabad Division, Aurangabad for taking a decision afresh on the same.

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Writ Petition stands disposed of in above terms with no order

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as to costs.

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( N. W. SAMBRE, J. )

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Punde

Lobha Kanhu Naik and Ors. v. the State of Mah and Ors.

Case brief

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Lobha Kanhu Naik and Ors. v. the State of Mah and Ors.

Case brief

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