Deshmukh S.B., J.
1. Heard learned Counsel for the parties.
2. Rule. By consent of parties, rule is made returnable forthwith and heard finally.
3. A brief histories of lis would suffice. The Writ Petition No. 3017 of 2007, takes an exception to the judgment and order passed by the learned Assistant Charity Commissioner, Dhule in Inquiry No. 400 of 2007 passed on 3rd May, 2007. Writ Petition No. 3401 of 2007 challenges the judgment and order passed by the learned Assistant Charity Commissioner, Dhule in Inquiry No. 415 of 2007, dated 22nd May, 2007.
4. Writ Petition No. 3017, as noted above, challenges the order passed by the learned Assistant Charity Commissioner, Dhule in Inquiry Application No. 400 of 2007. This proceeding/inquiry application, indisputably, is registered at the instance of learned Assistant Charity Commissioner, Dhule Region, Dhule (suo motu). It appears that Borvihir Vidya Prasarak Sanstha, Taluka and District Dhule (hereinafter referred to as the trust, for short) is shown to be opponent in that inquiry application. It is also not in dispute that neither the present petitioners nor any other person, was heard by the learned Assistant Charity Commissioner while passing the order in Inquiry Application No. 400 of 2007. The learned Assistant Charity Commissioner has noted that the trust in question is a registered public trust. The said trust is having its constitution/rules and regulations for the management of the trust. It provides a managing committee consisting of 15 members, including the office bearers like President, Vice President and Secretary. The tenure of the managing committee is five years. Earlier, there were two change reports, filed by two groups. They were registered as Inquiry Application No. 200 of 2003 and 211 of 2003. Parties met halfway in 2004. Both the groups submitted withdrawal Purshis on 22nd November, 2004, in their respective change reports. Both the change reports were allowed to be withdrawn. Thereafter, one Shri Raghunath Motiram Patil had filed a change report on 10th January, 2005. It was registered as Inquiry Application No. 13 of 2005. Meanwhile, one Mr. Bhagwant Vitthal Patil and Popat Jairam Patil filed applications under Section 41-A of the Bombay Public Trust Act, 1950 (hereinafter referred to as the said Act, for short). They were seeking direction for holding elections. It was registered as Inquiry Application No. 10 of 2005. Inquiry Application No. 10 of 2005 was withdrawn at the instance of the applicants.
The change Report No. 13 of 2005, after hearing the parties, came to be rejected. According to respondent No. 3, since change Report No. 13 of 2005 is rejected by him, all those persons claiming to be elected, and officiating as 'Trustees' of the trust in question, have lost their status as 'Trustees'. He felt necessity of management of the trust. He, therefore, appointed one Mr. N.B. Shewale, Inspector from his office as Election Officer to hold the elections for new managing committee of the trust. He also gave further direction to Mr. Shewale for holding such elections and other directions. This order, as noted above, is impugned in Writ Petition No. 3017 of 2007.
5. Learned Counsel Mr. Dhorde submitted that the petitioners were not heard before passing the impugned order. He relied on some judicial pronouncements, which are enlisted herein below:
(1) (Canara Bank and Ors. v. Shri Debasis Das and Ors.) reported in A.I.R. 2000 S.C.W. 1561. - The Apex Court held that when a quasi judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue, hearing needs to be given to the affected party.
(2) (Netai Bag and Ors. v. The State of West Bengal and Ors.) reported in : AIR2000SC3313 . - The Apex Court held that an executive agency must be rigorously held to standards by which it professes its actions should be judged.
(3) (The Scheduled Caste and Weaker Section Welfare Association (Regd.) and Anr. v. State of Karnataka and Ors.) reported in : [1991]1SCR974 . The Apex Court was considering the provision laid down under Section 11 of Karnataka Slum Areas (Improvement and Clearance) Act (1973). In this context, the Apex Court held that in view of proviso to Sub-section (1) of Section 11 of the Act it was incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action.
(4) (S.N. Mukherjee v. Union of India) reported in : 1990CriLJ2148a . -Larger Bench of the Apex Court held that decision given by the Administrative Authority must record reasons except in cases where requirement is dispensed with expressly or by necessary implication.
(5) (Raghunath Thakur v. State of Bihar and Ors.) reported in : AIR1989SC620 . -It was a case of blacklisting of the Government Contractor. The Apex Court, while considering writ petition under Article 226, has referred Articles 229, 14 and 19(1)(g) and held that rule of natural justice applies to the fact situation.
(6) (S. LO. Kapoor v. Jagmohan and Ors.) reported in : [1981]1SCR746 . - Apex Court held that merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed.
(7) (Ramrao Shankarrao Kavthale v. Vijaykumar Bhuprao Shete and Ors.) reported in 2003 B.C.I. 592 : 2004(2) All.M.R. 211. - The learned Single Judge Bench of this Court held that Charity Commissioner is not empowered to remove or appoint any new committee or to appoint ad hoc committee to manage the trust affairs under Section 41-A of the said Act.
(8) (Ramdas Shivaji Sakhare and Ors. v. Karuji Dago Ambade and Ors.) reported in 2002(3) Bom.C.R. 20 : 2002(2) M.L.J. 304 : 2002(3) All.M.R. 197. - Here, learned Single Judge Bench of this Court held that, Assistant Charity Commissioner, while deciding application under Section 41-A has no authority to appoint ad-hoc committee to manage and administer the trust.
(9) (Asaram Bhimrao Shinde and Ors. v. State of Maharashtra and Ors.) reported in : 2002(3)BomCR16 . - Learned Single Judge Bench of this Court held that Section 41-A of the said Act speaks about only directions to be issued to the trustee or persons connected with the trust for proper administration of the trust and for diligent performance of duties by the trustee for attaining the objects and purpose for which the trust is established. It does not empower the Charity Commissioner to remove or appoint any new committee for administration of the trust.
(10) (Nathmal Kisanlalji Goenka and Anr. v. Assistant Charity Commissioner, Akola and Anr.) reported in 1993(Supp.) Bom.C.R.269 : 1994 M.L.J. 303. The learned Single Judge Bench of this Court held that the Charity Commissioner is empowered to issue directions to trustee to hold elections in the interest of administration and proper management of the trust under Section 41-A of the said hex.
(11) (Lahudas Samhhaji Karad v. State of Maharashtra and Ors.) reported in : AIR1993Bom315 . - The learned Single Judge Bench of this Court held that the Joint Charity Commissioner has no powers to interfere with the process of elections to Governing Council of the public trust under Section 41-A or 41-E of the said Act.
(12) (Dattatraya S/o. Mahadeo Hiware and Ors. v. Arjun S/o, Samhhaji Shinde and Ors.) reported in 2007(1) M.L.J. 48. The learned Single Judge Bench of this Court held that the Charity Commissioner can issue directions to ensure proper administration of the trust, to trustees or persons connected with the trust. However, there is no specific power to make appointment of committee for running of the trust.
6. It is apropos to consider the scheme of Chapter-VI of the Bombay Public Trust Act, 1950. Section 41-A to Section 41-E (five sections) were added by Maharashtra Act No. X of 1971. Publication is in Maharashtra Government Gazette Part-IV dated 29th April, 1971. These sections were made applicable by the Notification No. 10611-P from 15th June, 1972. Before this addition, Chapter-VI of the Act was consisting sections from Sections 37 to 41. Bare look to Chapter-VI shows that it was/is titled as 'control'. Section 37 empowers the Charity Commissioner, the Deputy or Assistant Charity Commissioner or any officer authorised by the State Government, for inspection and supervision. Section 38 gives powers to Deputy or Assistant Charity Commissioner, to whom report is submitted, to require the trustee or any other person connected, to submit an application thereon within such period as he thinks fit. Section 39 contemplates recording of finding by the Deputy or Assistant Charity Commissioner on the question whether or not a trustee or the person connected with the trust has been guilty of gross negligence, breach of truest, misappropriation or misconduct which resulted in loss to the trust, and report to Charity Commissioner. The Charity Commissioner, after considering such report of the Deputy or Assistant Charity Commissioner, and after giving an opportunity to the person concerned and holding such inquiry, is vested with the power to issue orders on report received under Section 39 or to remand the matter. These powers can be traced from Section 40.
Section 37(1)(d) contemplates reasonable notice to the trustee. Section 37(1)(b) refers to trustees or any person connected with the trust. Thus, while exercising the powers under Section 37, Charity Commissioner, the Deputy or Assistant Charity Commissioner, or any officer authorised by the State Government has to issue reasonable notice to the trustee or any person connected with the trust. Section 38 also makes a reference to 'trustee or any other person concerned'. Section 38 gives powers to the Deputy or Assistant Charity Commissioner to require the trustee or any other person concerned to submit an explanation within such period as he thinks fit. Thus, notice and hearing to trustee and other person concerned, is embodied in Sections 37 and 38. Section 39 refers to submission of report to Charity Commissioner, after considering explanation, if any, furnished by the trustee or any other person connected with the public trust. Section 40 refers to person connected and makes obligatory, giving an opportunity to such person connected and further contemplates holding of inquiry. Thus, from Section 37 to Section 40 the officer concerned has to exercise the powers after reasonable notice to trustees or persons connected with the trust before passing of further orders. In other words, no order can be passed/no action can be taken, by the officer concerned under Sections 37, 38, 39 and 40 unless the trustee or person connected is heard and some inquiry is conducted. While parting with this group of sections, it is to be noted that, trustee and person connected with the trust, or person concerned, are alone referred in this group of sections. However, Section 2 of the Act nowhere defines 'person connected with the public trust' or 'person concerned with the public trust'. The expression 'trustee' is defined under Section 2(18) of the said Act. Trustee means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager.
7. On the premise of unamended Sections 37 to 41 in Chapter VI, group of these sections from 41-A to 41-E is added by the amendment. Section 41-A confers the power on the Charity Commissioner to issue directions from time to time. Such directions may be issued to any trustee of public trust or any person connected therewith. Such directions can be issued to ensure that the trust is properly administered and the income of the trust is properly accounted for and duly appropriated and applied to the objects of the trust. He has to also keep in mind the purpose of the trust while issuing all such directions. Charity Commissioner is also vested with the power to give directions to the trustees or such person if he finds any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. From the phraseology of Section 41-A, it is revealed that notice to trustee and person connected, opportunity of being heard to trustee and person connected, is not provided. Consequently, it is discernible from 41-A that such directions may be issued from time to time. There is no minimum or maximum ceiling for issuing such directions. The Charity Commissioner is not expected to adjudicate upon a lis. Charity Commissioner is not supposed to adjudicate upon rights of the parties. The Charity Commissioner is not expected to remove 'A' trustee and appoint 'B' trustee. The Charity Commissioner is not empowered to remove all trustees and appoint committee of members or other persons. Powers are not given to the Charity Commissioner to appoint administrator. All that seems to be the object of Section 41-A, is to ensure that the trust is properly administered and income thereof is properly and duly appropriated, accounted and applied to the objects and for the purpose of the trust; This power also to be exercised for prevention of waste and damage to the property of the trust. Thus, nature of the power vested with the Charity Commissioner is significant from this view point. The Charity Commissioner also can exercise power under Section 41-A suo motu in consonance with the provisions laid down under Section 41-A. Sub-section (2) of Section 41-A makes it obligatory on every trustee or such person to comply with the directions issued under Sub-section (1).
There is no provision for filing of any appeal or revision against the directions issued by the Charity Commissioner under Section 41-A. A bare look to Section 70 makes it clear that orders passed under specified sections like Sections 20, 22, 22-A, 28, 54(3) and 79-AA are made appealable under Section 70, to the Charity Commissioner. Here, there is no reference of Section 41-A. Section 70-A of the said Act empowers the Charity Commissioner to call for and examine records and proceeding before the Deputy or Assistant Charity Commissioner. The Proceeding under Section 41-A is not considered to be a 'case' pending before the Assistant Charity Commissioner. From Section 70-A it can be said that remedy of revision application is also not specifically made available under Section 70-A of the said Act. It is also apposite to refer to Section 72 of the said Act wherein application by aggrieved person, by a decision of the Charity Commissioner, under Sections 40, 41, 41-C and 43(2)(a)(c), 50-A, 70, 70-A is provided to the Court. The 'Court' is defined under Section 2(4) meaning thereby in Greater Bombay the City Civil Court and elsewhere the District Court. Thus, direction issued by the Charity Commissioner under Section 41-A is also not made appealable before the District Court under Section 72. It seems to be intention of the Legislature while inserting Section 41-A empowering the Charity Commissioner only to issue directions to the trustee or the person connected with the trust and to ensure that the trust is properly administered and income thereof is properly accounted for and waste and damage to trust property to be prevented. No lis before the Charity Commissioner and/ or Appellate and Revisional Authority is contemplated under the provisions of the said Act. The powers of Charity Commissioner under Section 41-A are delegated to Assistant Charity Commissioner. Thus, the authority, exercising the powers under Section 41-A of the said Act, is not empowered to dislodge the trustee from office, appoint committee for administration of the trust or to appoint administrator to look after the affairs of the trust. Such orders/directions by the authority, resorting to Section 41-A of the said Act is under assumption that such powers are vested with the authority. Such orders/directions, therefore, are arbitrary and exceeding power and jurisdiction.
8. Turning to the facts of the case on hand, it appears that Change Report No. 13 of 2005, filed by one group, was rejected by the learned Assistant Charity Commissioner on 3rd May, 2007. The learned Assistant Charity Commissioner presumed that the said order is final, there is no trustee in the office and, therefore, administrator needs to be appointed. Appeal against order passed under Section 22 is provided under Section 70 of the said Act. Right of appeal is a valuable right. It is apropos to refer to a Constitution Bench judgment of the Apex Court in the matter of (Garikapati Veeraya v. N. Subbiah Choudhary and Ors.) reported in : [1957]1SCR488 . The Apex Court observed:
(23) From the decisions cited above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
9. It is indisputable in the present case that the petitioners have filed Appeal No. 8 of 2007 challenging the order passed by learned Assistant Charity Commissioner rejecting their change report Inquiry No. 13 of 2005. The said appeal is pending before the Appropriate Authority.
10. At the instance of learned Counsel for respondent Miss. Surekha Mahajan, record and proceeding from the learned Assistant Charity Commissioner was called for. From the record, it appears that Inquiry Application No. 400 of 2007 was the suo motu proceeding initiated by the learned Assistant Charity. Commissioner, Dhule. From the record, I could get only the order passed by the learned Assistant Charity Commissioner, Dhule in Inquiry No. 400 of 2007. Other record of Misc. Application No. 10 of 2005, filed by one Mr. Bhagwan Vithal Patil is also produced. Record pertaining to other change report, with which this petition has no concern, is also produced. We have no concern with other record. However, I have also came across a communication addressed by Police Inspector, Dhule City Police Station, to Assistant Charity Commissioner dated 19th April, 2007. In this communication, reference is made to registration of offence at C.R. No. 65 of 2007 under Sections 406, 408, 420, 467, 468, 471 and 34 of Indian Penal Code. Name of the complainant mentioned in this communication is Mr. Raghunath Motiram Patil. Name of the accused persons are also given in this communication. By this communication, Police Inspector, City Police Station, Dhule, seems to have sought guidance from the learned Assistant Charity Commissioner in relation to operation of savings bank Account Nos. 6335 and 650 with Dhule District Central Cooperative Bank. From this record, I have also come across a letter dated 31st May, 2007 addressed by Assistant Charity Commissioner, Dhule to Police Inspector, Dhule in response to his letter dated 19th April, 2007. In this communication, reference is made to another Misc. Application No. 415 of 2006 (subject-matter of Writ Petition No. 3401 of 2007). It is informed by the learned Assistant Charity Commissioner that by the order passed by him on 22nd May, 2007, the office bearers of the trust, recorded with his office, are permitted to look after the management and also permitted to operate the bank accounts. Accordingly, powers are given to them. At this stage, it would be appropriate to refer to the reply affidavit filed on behalf of respondents. Advocate Miss Mahajan, along with this reply affidavit, has also produced on record some complaints in relation to alleged misappropriation of funds of the trust in question. According to learned Counsel Miss. Mahajan, in view of this fact situation, the learned Assistant Charily Commissioner has justifiably exercised the powers under Section 41-A of the said Act. It is not possible to accede to this submission in view of the view taken by me in the foregoing paragraphs regarding the power, authority and jurisdiction of learned Charity Commissioner, Deputy Charity Commissioner, Assistant Charity Commissioner exercising these powers.
11. Writ Petition No. 3401 of 2007 challenges the direction given by the learned Assistant Charity Commissioner dated 22nd May, 2007 in Inquiry No. 415 of 2007. This direction is also issued by the learned Assistant Charity Commissioner, exercising the powers under Section 41-A of the said Act. These directions are emerging in a communication addressed to one Raghunath Motiram Patil, who is respondent in this petition. This communication is at Annexure-D to this writ petition. Communication is dated 23rd May, 2007. While issuing these directions also, the present petitioner was not heard. This direction refers to direction issued by the learned Assistant Charity Commissioner in Misc. Application No. 415 of 2007 dated 25th May, 2007. In view of the view taken by me, this petition also needs to be allowed by quashing and setting aside these directions.
12. In the result, Writ Petition No. 3017 of 2007 is allowed. Order impugned in this writ petition, passed by the learned Assistant Charity Commissioner, Dhule in Inquiry Application No. 400 of 2007 is quashed and set aside. Writ Petition No. 3401 of 2007 is also allowed and the order impugned in the said petition, passed by the learned Assistant Charity Commissioner in Misc. Application No. 415 of 2007 dated 22nd May, 2007 and 23rd May, 2007 is quashed and set aside.
13. Appellate Authority, before whom Appeal No. 8 of 2007 is pending, is directed to decide and dispose of the said appeal expeditiously and by giving due opportunity of hearing to the parties. No costs.