Bombay High Court
Shri Mukund Waman Thatte vs Shri Sudhir Parshuram Chitale on 14 March, 2012
Author: G.S.Godbole
Bench: G.S.Godbole
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srj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7772 OF 2005
Shri Mukund Waman Thatte ]
Age 76 years, Occupation: Nil ]
Residing at 208/B, Balkrishna Co-operative ]
Housing Society, G. Gupte Road, Dombivli ]
(West) Pin Code 421 202. ] .. Petitioner
V/s.
1 Shri Sudhir Parshuram Chitale ]
Age: Adult, Occupation:- Business
Prabhu Pakhar, Wadacha Naka,
]
]
At Post Taluka Chiplun, ]
District : Ratnagiri. ]
2 Mr. Nishikant Madhav Joshi ]
Age: Adult, Occupation:- Business ]
Sagar Press, Opp: MSEB Power ]
House, At and Post Taluka Chiplun ]
District: Ratnagiri. ]
3 Mr. Heerabhai Parshuram Butala ]
Merchant, at and Post Tal. Khed, ]
District: Ratnagiri. ]
4 Mr. Madhukar Gopal Ware ]
Koshta Wadi, Near Cow Temple, ]
At and Post Pedhe Parshuram, ]
Tal. Chiplun, District: Ratnagiri. ]
5 Mr. Suhas D. Bartakke ]
Bartakke Bungalow, Vindyasini Road,]
Rawtel At and Post Tal. Chiplun, ]
District: Ratnagiri. ]
6 Mr. Shankar Waman Thatte ]
At and Post Parshuram, Taluka ]
Chiplun, District: Ratnagiri. ]
7 Mr. Sadashiv Waman Thatte ]
8 Mr. Raghunath Dattatray Joshi ]
Both Res. Nos.7 and 8 above ]
residing at Post, Parshuram, ]
District: Ratnagiri. ]
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9 Director of Archeology ]
State of Maharashtra, St. Gorges ]
Hospital, Bombay Near C.S.T. ]
Bombay. ] .. Respondents.
Mr. A. A. Kumbhakoni with Mr. T. D. Deshmukh, for the Petitioner.
Mr. S. M. Railkar, for Respondent No.1.
Mr. Harshad Bhadbhade, for Respondent Nos.2 and 3.
Ms. P. S.Carozo, AGP for Respondent No.9.
CORAM: G.S.GODBOLE,J.
DATE : 14th MARCH, 2012.
P.C.:-
1
Heard Mr. Kumbhakoni for the Petitioner, Mr. Railkar for Respondent No.1, Mr. Bhadbhade for Respondent No.2 and 3 and the learned AGP Ms. Cardozo for Respondent No.9.
2 By this Petition filed under Article 227 of the Constitution of India, the Petitioner has challenged the Judgment and Order dated 20th July, 2005 passed by the Charity Commissioner (M.S.), Mumbai in Application No.24 of 1998 thereby dismissing the same. That application was filed under Section 41-D of the Bombay Public Trusts Act, 1950. The litigation has a checkered history.
3 Saunsthan Shree Bhargavram Parshuram bearing P.T.R. No.A-1 (Ratnagiri) is a Public Charitable Trust, registered under the said Act.
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BRIEF RESUME OF FACTS
4 On 16th January, 1982, the State of Maharashtra declared its
intention to protect the temple maintained by said Trust as the same was a protected monument defined in Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960.
5 On 16th March, 1983, by a notification, said Temple was declared as a protected monument.
6 on 3rd May, 1984, a scheme was framed by the then District and Sessions Judge, Ratnagiri, by way of decree passed in Suit No.8 of 1971, filed by the Charity Commissioner. As per the said scheme, Trustees are to be appointed by learned District Judge, Ratnagiri, under Clause 9(c) of the Scheme.
7 On 26th September, 1984, learned District Judge, by its order appointed 6 trustees.
8 On 25th September, 1989, subsequently, by order, six trustees were appointed. Then tenure of said appointed trustees was extended from time to time upto 19th November, 1995.
9 On 11th May, 1994, Petitioner submitted several complaints with the learned District Judge, as the said trustees were mismanaging the affairs of trust. Similar complaints were filed on 18th July, 1994, 8th November, 1994, 28th December, 1994 and 22nd January, 1995.
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10 On 11th November, 1994, State of Maharashtra denotified the
temple of said Trust as a protected monument.
11 On 18th September, 1995, learned District Judge, vide its
order appointed 7 trustees for a period 1995 to 2000, thereby continuing the appointment of Respondent Nos.1 and 2.
12 On 19th July, 1996, this Court was pleased to dispose of Writ Petition bearing No.860 of 1996, giving certain directions to the learned District Judge to hear the complaint submitted by the Petitioner in accordance with law.
13 On 18th February, 1997, learned District Judge conducted an enquiry and was pleased to prepare a report in the present dispute. The Ld. District Judge was pleased to hold that the construction and/or renovation started and completed by the trustees was in contravention of Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960. However, the learned District Judge was of the view that the then body of Trustees may be permitted to continue as one more chance, with necessary strict directions.
14 On 12th January, 2001, lastly, the learned District Judge, by its order appointed 7 trustees i.e. the present Respondents for period 2001 to 2006. Petitioner again moved this Court by way of Writ Petition bearing No.355 of 1998 seeking removal of Trustees.
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15 On 16th February, 1998, this Court (Coram: M. B. Shah and
R. J. Kochar JJ) was pleased to dismiss Writ Petition No.355 of 1998, and directed the Petitioner to approach appropriate Forum.
16 On 19th August, 1998, Petitioner preferred application bearing No.24 of 1998, before the learned Charity Commissioner, under Section 41-D of Bombay Public Trust Act, 1950, seeking removal of the said Trustees.
17 On 23rd August, 2000, learned Charity Commissioner was pleased to reject the application preferred by the Petitioner under Section 41D of the Bombay Public Trust Act, 1950. The learned Charity Commissioner was of the view that it is not necessary to frame any charges against the said Trustees.
18 On 5th September, 2002, this Court (Coram: D. K. Deshmukh J.) after hearing both the sides was pleased to remand the matter back to the learned Charity Commissioner with direction to consider the same in accordance with law. This Court was of the view that the Application filed by the Petitioner under Section 41D of the Bombay Public Trust Act, 1950, was maintainable in law in view of the fact that the Petitioner was not challenging the report of the learned District Judge, dated 18th February, 1997.
Thereafter, the impugned order has been passed.
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SUBMISSIONS OF PETITIONER
19 Mr. Kumbhakoni advanced the following submissions:-
(i) He submitted that there were serious irregularities committed by
the trustees and acts of misfeasance and malfeasance had been committed and, hence, a concrete case for taking action for removal of Respondent Nos.1 to 3 under Section 41-D of the said Act was made out.
(ii) Mr. Kumbhakoni laid particular emphasis on the report of the then District Judge, Ratnagiri- Shri V. G. Munshi. Special emphasis was laid on point No.2 in the said report which relates to failure to take effective steps to get the names of the Trustees entered in the Revenue Records of the various properties of the Trust. He relied upon the observations made by the District Court on point No.2 to the effect that no effective steps were taken to protect and preserve the properties of the Trust.
(iii) He submitted that the idols were changed without the permission of the concerned department. He also submitted that contrary to the provisions of Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960, work of repairs and renovation of the temple was carried out without the permission of the Competent Authority under the said Act. He, therefore, submitted that serious charges had been duly proved in the enquiry and Charity Commissioner ought to have removed Respondent Nos.1 to 3. He criticized the Judgment of the Charity ::: Downloaded on - 09/06/2013 18:17:17 :::
-7- 202-wp-7772-2005 Commissioner and contended that no justification has been given for not exercising the power under Section 41-D. SUBMISSIONS OF RESPONDENT 20 On the other hand, Mr. Railkar and Mr. Bhadbhade, appearing for Respondent Nos.1 to 3 supported the impugned Judgment and Order of the Charity Commissioner. They pointed out that in respect of the various points raised by the District Court in the report, the District Judge has himself not found the point serious enough not to continue the trustees. According to them, in fact, even after the report of the District Judge, they were appointed as Trustees which indicated that the charges of misfeasance and malfeasance in the report were not of serious nature.
21 They also pointed out that Respondent No.1 has thereafter ceased to be trustee and Respondent Nos.2 and 3 have been again appointed as trustees of trust and there are no allegations warranting drastic action of removal.
CONSIDERATION OF SUBMISSIONS 22 I have considered the rival submissions. In so far as the first charge of failure to record the names of the trustees in the properties of the trust is concerned, while deciding charge No.2, the Charity Commissioner has held thus:-
"........ Opponents No.2 and 3, who are present trustees cannot be held responsible for alleged negligence on the part of earlier ::: Downloaded on - 09/06/2013 18:17:17 :::
-8- 202-wp-7772-2005 board of trustees. It is an admitted that inspite of some of the observations made by the Honourable District Judge, in his report, District Judge allowed the then board of trustees to continue only for their un-expired period of tenure and reappointed opponents No.2 and 3 as trustees by his order dated 12-1-2001. The applicant has clearly admitted that he has no personal knowledge about the allegations made in respect of the alleged failure to record name of the trust to the properties belonging to the trust and about the maintenance of property registers. Therefore, I hold that the applicant has failed to prove charge No.2 against opponents No.2 and 3. Hence, I answer charge No.2 in the negative."
23 In respect of the alleged waste of trust's funds by using the funds for Vajralep to the statues of the devotees is concerned, charge No.3 had been framed. The Charity Commissioner has elaborately discussed the entire evidence in respect of charge No.3 and thereafter, a finding has been recorded that the said charge is not proved. The Charity Commissioner has recorded the following finding:-
" ..... In the report Exhibit 75 Honourable District Judge has specifically stated that, " It is necessary to mention that any particular trustee or individual cannot be held responsible for any such act".
24 The Charity Commissioner has also relied on the Judgment reported in 1990 (2) BCR 702 in the case of Vajubhai Patel v/s. Charity Commissioner, Maharashtra which reads thus:-
" .... Imputation reflecting on integrity of people have to be fortified by proof of a high degree - Even if proceeding under Section 41-D be not a criminal proceeding, proof required to sustain charges therein must satisfy a higher standard than that normally required in cases governed by rule of preponderance of ::: Downloaded on - 09/06/2013 18:17:17 :::
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25 In so far as the constructions without permission of the Government under the aforesaid Maharashtra Ancient Monuments, Archaeological Sites & Remains Act, 1960 is concerned, the Charity Commissioner has framed charge No.4 and after A detailed discussions, the Charity Commissioner has observed thus:-
" ... It is to be noted that on page No.56 Honourable District Judge, Ratnagiri has observed that, We have seen in above paragraphs the irregularities found in the working of the trust. It is a fact that the irregularities shown above really occurred in the administration of the trust. Some irregularities pointed out above are of technical nature and can be cured by taking proper steps. The other irregularities are of permanent nature and now cannot be rectified, and for these irregularities the trustees have to blame themselves. Now we can not do anything, for the things, which occurred in the past and which are of permanent nature. However, from all these events everybody should take lesson, that he should be more careful in future, and no such mistake is repeated in future. In view of the aforesaid observations made by the Honourable District Judge, present respondent No.2 and 3 cannot be held solely responsible for carrying out work of reconstruction, renovation of the temple without obtaining sanction as required under the provisions of Maharashtra Ancient Monuments Archaeological Site & Remains Act, 1960. Hence, I answer charge No.4 in the negative."
26 The scope of the enquiry under Section 41-D will have to be considered. For taking drastic action of removal, suspension and dismissal ::: Downloaded on - 09/06/2013 18:17:17 :::
- 10 - 202-wp-7772-2005 from the posts of the trustees, a very high decree of proof is required and the person seeking removal has to prove that the irregularities within the scope of Section 41-D (i) are proved without any manner of doubt. In the case of Mallikarjuanappa S/o. Sidramappa Bidve & Others v/s. Joint Charity Commissioner and Others decided by the learned Single Judge (Coram: V. R. Kingaonkar J.), it is observed in paragraphs 18 and 19 as under:-
"Para-18:- The legal position, which may be kept at back of the mind, is that removal of a trustee is a drastic action. The charge of malfeasance and/or misfeasance is serious one. The proceedings are of quasi civil and quasi criminal nature. Though the proceedings under Section 41D is not criminal proceeding as such, yet, proof required to sustain the charges is of high standard. The standard of proof in such proceedings is some what more than normally required in cases governed by preponderance of probabilities and some what less than required in trials of criminal cases. The degree of proof required in criminal case is such that would prove criminal charge beyond a reasonable realm of doubt. The imputation reflecting on integrity of trustees have to be fortified by proof of high degree which would be somewhere in between standard of proof required in civil proceedings like a suit and criminal proceedings like a trial for offence of criminal breach of trust, or that of cheating. Thus, unless the lapse on part of the trustee is proved to be actuated by dishonestly or active connivance with other trustees, who are guilty of misfeasance or malfeasance, the drastic action under Section 41-D of the BPT Act may not be warranted.
Para-19:- The expression "misfeasance" as used in Clause (c) of Section 41-D would imply commission of breach of trust. It is more than mere negligence of the trustee to perform his duty. "Misfeasance" includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with act of misfeasance. Acceptance of donations from students for giving admission to first year ::: Downloaded on - 09/06/2013 18:17:17 :::
- 11 - 202-wp-7772-2005 Engineering course is not contemplated under the terms of the office of the trusteeship. It requires no mincing of words to say that ordinarily no student will volunteer to pay in excess of the prescribed fees for admission to the professional course. It is only for compelling reasons, that the donations or capitation fees is paid by the students. They are a needy class. The exploitation is made by those who can fleece the easy money."
27 It is thus clear that imputation reflecting on the integrity of the trustees have to be fortified by proof of high degree which will have to be higher than the standard of proof required in the civil proceedings.
Unless and until the lapse on the part of the trustee is proved to be actuated by dishonesty, a drastic action under Section 41-D is not warranted. In my opinion, the Charity Commissioner has considered the entire evidence available on record and has, thereafter, reached an appropriate decision that the case for drastic action for removal of the trustees had not been made out. No fault can be found with the reasoning of the Charity Commissioner in the impugned order. I entirely agree with the view expressed by the Charity Commissioner that the errors committed by the trustees were not so severe so as to warrant their removal. There is no merit in the Writ Petition and the same will have to be dismissed.
28 The intention of the Petitioner cannot be doubted and the Petitioner is also a person who is fighting for the Welfare of the trust.
However, in the absence of any case for removal of the trustees, no fault ::: Downloaded on - 09/06/2013 18:17:17 :::
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29 Rule discharged with no order as to costs.
(G.S.GODBOLE,J.) ::: Downloaded on - 09/06/2013 18:17:17 :::