Bombay High Court
Bhartiya Kala Prasarini Sabha, Pune ... vs Shri. Rajendra Marutrao Balkawade And on 13 December, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
Shridhar Sutar 1 919-fast-34649.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL STAMP NO. 34649 OF 2018
WITH
CIVIL APPLICATION STAMP NO.34651 OF 2018
Rajeev @ Raju Vishwanath Bhoite ... Appellant
Versus
Rajendra Marutrao Balkawade and others ... Respondents
WITH
CIVIL APPLICATION NO. 4125 OF 2018
IN
FIRST APPEAL NO. 1196 OF 2018
Bhartiya Kala Prasarini Sabha, Pune & ors. ... Applicant
Versus
Rajendra Marutrao Balkawade and others ... Respondents
.....
Mr. Rahul Kadam, Advocate for the Appellant in First Appeal Stamp
No.34649 of 2018.
Mr. Shirish V. Pitre, Advocate for the Applicant in CA No.4125 of 2018.
Mr. Balkrishna D. Joshi, Advocate i/b Darshana Pawar, Advocate for
Respondent Nos. 1 to 5 in First Appeal Stamp No.34649 of 2018.
.....
CORAM : A. S. CHANDURKAR, J.
DATE : 13th DECEMBER, 2018.
P. C.:
CIVIL APPLICATION NO. 4125 OF 2018
IN
FIRST APPEAL NO. 1196 OF 2018
1. Heard learned Counsel for the parties on the prayer of grant of stay.
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2. It is submitted by the learned Counsel for the appellants that Charge Nos. 2 and 6 are the only charges on which the appellants have been removed as trustees under the provisions of Section 41-D of the Maharashtra Public Trust Act, 1950. Charge No.2 relates to making persistent default in submitting the accounts of the trust regularly. In this regard, it is submitted that an application was moved before the Deputy Charity Commissioner on 14/12/2015 praying that the delay in submission of the said audit reports be condoned. That delay stood condoned on 16/12/2015 by the learned Deputy Charity Commissioner by imposing costs of Rs.500/-. It is submitted that this fact has been brushed aside by the learned Joint Charity Commissioner while passing the impugned order. Charge No.6 pertains to acts of malfeasance and misfeasance with regard to the trust. Without there being any evidence in that regard it has been held that the appellants are guilty of malfeasance and misfeasance. It is further submitted that the original applicants in the said proceedings were held to be persons not having interest in the activities of the trust and without any sufficient evidence on record, suo-motu power of removal has been exercised. Relying upon the decision in Mallikarjunappa Sidramappa Bidve and others Vs. Joint Charity Commissioner - 2008 (1) Mh.L.J. 148 it is submitted that since the removal of a trustee is a drastic action and the charge of misfeasance is a charge of quasi criminal nature, the quality of evidence required is on higher side. Moreover, appointment of the Joint Director of Technical Education as a fit person was not warranted. Hence, a case for grant of stay was made out.
3. On behalf of the respondents, the prayer is opposed. It is submitted that there are various activities of the appellants which indicate that they were not acting in the interests of the trust.
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Reference was made to the observations in Writ Petition (St) No.29505/2014 decided on 17/11/2015 which indicate that proceedings were filed by the appellants herein in the name of the trust due to which costs were imposed. Reference is also made to the Change Reports filed by the Secretary being CR No.1699 of 2001 which came to be subsequently rejected. It is thus submitted that in the light of the fact that the appellants were not acting in the interests of the trust and audited reports had been belatedly filed, the Joint Director of Technical Education was rightly had been appointed as Administrator. There is no reason to stay that order.
4. Prima-facie, it may be seen that Charge No.2 pertains to making persistent default in submitting the accounts of the trust. The period in question is from the year 2000 to 2007. During pendency of the proceedings the said reports came to be filed and the delay in doing so was condoned by the learned Deputy Charity Commissioner by imposing costs of Rs.500/-. Presently the audit reports have been filed.
5. Insofar as the Charge No.6 with regard to acts of malfeasance and misfeasance is concerned, it has been observed that due to belated filing of the audit reports there was likelihood of a loss is being caused to the trust. Reference is made to disputes amongst the trustees and some misappropriation being done by the Principal and Clerk of the Arts College. On this basis that charge has been held to be duly proved. In the light of observations in Mallikarjunappa Sidramappa Bidve (supra) the charge of misfeasance requires cogent evidence as the same is of a serious charge of criminal nature. Prima-facie, that material does not appear on record.
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6. Though the learned Counsel for the respondents sought to rely upon other material which was not before the learned Joint Charity Commissioner, at this prima-facie stage, same would not be very relevant while considering the challenge to the impugned order. Moreover, it has been found that the said respondents were not persons having interest in the trust.
7. I therefore find that the appellants have made out a prima-facie case. Hence, during pendency of proceedings there shall be ad-interim relief in terms of prayer clause (b). This would be subject to appellants' conducting the affairs of the trust in accordance with law and as per the bye-laws of the Trust. It is clarified that the observations made in this order are only for deciding the present application.
8. The civil application is disposed of in aforesaid terms.
FIRST APPEAL STAMP NO. 34649 OF 2018
1. Heard.
2. Admit. To be heard with First Appeal No. 1196 of 2018.
3. Call for records of Application No. 8 of 2004 from the office of the learned Joint Charity Commissioner, Pune by 28th January, 2019.
4. Since, the appeal arise under Section 41-D of the of the Maharashtra Public Trust Act, 1950, hearing is expedited. The appeal to come up on 28th January, 2019.
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CIVIL APPLICATION STAMP NO.34651 OF 2018
1. Issue notice to the respondents, returnable on 28 th January, 2018. Respective Counsel waive service.
2. In view orders passed in C.A No. 4125 of 2018, there shall be ad-interim relief in terms of prayer clause [A] till the returnable date.
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