Bombay High Court
Shri Ramchandra Shankar Pandhare And ... vs Shri. Mhaskoba Devasthan Trust Pune And ... on 8 November, 2019
Author: A. M. Badar
Bench: A. M. Badar
1-WP-11389-2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11389 OF 2014
RAMCHANDRA SHANKAR PANDHARE & ORS.)...PETITIONERS
V/s.
MHASKOBA DEVASTHAN TRUST PUNE & ORS.)...RESPONDENTS
Shri.Subhash Jha a/w. Ms.Sanjana Pardesi a/w. Shri.Shailendra
Dubey, Advocate for the Petitioners.
Shri.Rajesh More, Advocate for Respondent No.1.
CORAM : A. M. BADAR, J.
DATE : 8th NOVEMBER 2019
P.C. :
1 By this petition, the petitioners are challenging the
order dated 5th August 2014 passed by the learned District Judge,
Pune, thereby rejecting their application for condonation of delay
in filing an application under Section 72(1) of the Bombay Public
Trusts Act (now Maharashtra Public Trusts Act).
2 Heard finally the learned counsel appearing for
petitioners as well as the learned counsel appearing for
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respondents. The learned counsel appearing for respondents drew
my attention to reply to the application for condonation of delay
and submitted that deceased father of respondents, namely
Shivajirao Jagannath Bhosale, had submitted Change Report and
the same was accepted. It is further argued that said Shivajirao
Jagannath Bhosale expired on 10th October 1997. After his death,
three sons of late Shivajirao Bhosale i.e. respondents became
Trustees of the Trust. Infact, there is delay of 13 years in moving
the application under Section 72 of the then Bombay Public Trusts
Act, and therefore, the learned District Judge has rightly exercised
the jurisdiction in rejecting the said application.
3 I have considered the submissions so advanced and
also perused the impugned order. Application No.2 of 1998 came
to be moved by respondent nos.1, 2 and 3 before the learned
Assistant Charity Commissioner in exercise of powers under
Section 50A(1) of the then Bombay Public Trusts Act for framing
of the Scheme for Shri Mhaskoba Devasthan Trust, Pune.
Averment made in the said application was to the effect that the
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Trust was registered on 5th April 1955 and mode of succession
came to be settled as "surviving Trustees to appoint Trustee from
Pandhare family." It is seen that despite this mode of succession,
the learned District Judge was pleased to appoint Shivajirao
Bhosale, father of respondent nos.1 to 3 herein, and ultimately, on
expiry of Shivajirao Bhosale, an application came to be filed under
Section 50A(1) of the then Bombay Public Trusts Act, 1950 by
respondent nos.1 to 3 by arraigning Ganpat Pandhare, who was
dead by that time, as opponent. That is how, application under
Section 50A(1) of the then Bombay Public Trusts Act came to be
allowed and Scheme at Annexure A to the application was
directed to be the Scheme for management of Shri Mhaskoba
Devasthan Trust, Pune, bearing PTR No.A-822 (Pune).
4 It is, thus, seen that though members of Pandhare
family were having right and interest in being appointed as
Trustees of Shri Mhaskoba Devasthan Trust, Pune, they were not
arraigned as party respondents to the application under Section
50A(1) of the then Bombay Public Trusts Act, 1950, and the
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Scheme was framed without noticing them. That order was
sought to be challenged by filing an application under Section 72
of the Bombay Public Trusts Act by members of Pandhare family.
As such, I am of the considered opinion that there was sufficient
cause for not preferring an application under Section 72 of the
then Bombay Public Trusts Act (now Maharashtra Public Trusts
Act), by petitioners and the learned District Judge had erred in
rejecting the application by holding that there is 13 years delay in
filing the application under Section 72 of the then Bombay Public
Trusts Act.
5 Even otherwise, it is well settled that primary function
of the court is to adjudicate the dispute on its own merit and
when petitioners were not made party respondents in an
application under Section 50A(1) of the then Bombay Public
Trusts Act, it cannot said that they are guilty of delay and laches in
preferring the application under Section 72 of the then Bombay
Public Trusts Act. The impugned order, as such, cannot be
sustained, and therefore the order :
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ORDER
i) The petition is allowed in terms of Prayer Clause (a).
ii) The learned District Court is directed to decide the application under Section 72 of the then Bombay Public Trusts Act, 1950, on its own merit, according to law.
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