Bombay High Court
Shejar Chaya Trust And Anr vs Philip Peter Gonsalves And Ors on 14 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:32955
35wp9570-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9570 OF 2023
Shejar Chaya Trust and Anr. ... Petitioners.
Versus
Philip Peter Gonsalves and Ors. ... Respondents.
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Mr.Abhay Khandeparkar, Senior Advocate a/w. Mr.Sujay Gawade, Sumedha
Dhopate and Mudita Pawar i/by Shree & Co. for the Petitioners.
Mr. J.A. Sarkhot i/by Devashree Raut, Mubeen Sirkhot and Mr.Ganesh
Narula, for the Respondent Nos.1 to 4.
Ms. M.S.Bane, AGP for the Respondent-State.
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Coram : Sharmila U. Deshmukh, J.
Date : August 14, 2024 P. C. :
1. Heard.
2. By this Petition, the challenge is to the order dated 30 th January, 2023 passed by the Joint Charity Commissioner in Appeal No.165 of 2021 setting aside the order of the Assistant Charity Commissioner dated 24th November, 2020 and remanding the Change Report to the Assistant Charity Commissioner for fresh inquiry in accordance with law.
3. Mr.Khandeparkar, learned Senior Advocate appearing for the Petitioners would submit that after passing of proper Resolution Respondent Nos.1 to 4 were removed from the post of the Trustees after giving notice. He submits that the necessary documents were sa_mandawgad 1 of 4 35wp9570-23 submitted before the Assistant Charity Commissioner, who has observed that all notices sent by the Trust have came back unclaimed.
He further points out that after filing of the Change Report, notices were issued to outgoing Trustees which are also returned back with remark unclaimed. He submits that as there was service of notices upon the Trustees and they preferred not to participate in the proceedings, the Change Report was rightly accepted. Pointing out to the order of the Appellate Court, he submits that the only reason as far as the service aspect is concerned, which has weighed with the Appellate Authority is that the notices were not served through the process server and that the documents filed by the Petitioners are not proper. He submits that the notices were in fact served through the process server and an incorrect observation has been arrived at by the Appellate Authority.
4. Per contra, learned counsel for the Respondents would point out that the order was passed by the Appellate Authority on 30 th January, 2023 directing the parties to appear before the Assistant Charity Commissioner on 2nd March, 2023 at 11:00 a.m. and the matter has to be decided within a period of four months. She submits that the present Petition has been filed in the month of July, 2023 after the expiry of period of four months and the proceedings have already been commenced before the Assistant Charity Commissioner. She further submits that the affidavit of evidence has been filed before the Assistant Charity Commissioner and therefore the order has been 2 of 4 35wp9570-23 implemented in letter and spirit.
5. Mr.Khandeparkar, would submit that due to communication addressed to the bank, the operations of the Trust account are sought to be interfered with. He submits that it is necessary to permit the withdrawal of the amount for the benefit of the Trust. This relief is opposed by the learned counsel for the Respondent Nos.1 to 4 by submitting that after obtaining permission under Section 36 of the Public Trusts Act, the trust property has in fact been sold and therefore there is no trust building in existence as of today. She would further submit that for the same relief an application has been preferred before the Assistant Charity Commissioner and the same is under consideration.
6. Considered the submissions and perused the record.
7. The Change Report was accepted by the Assistant Charity Commissioner by ex parte proceeding for the reason that the previous notices as well as the notices sent after the filing of the Change Report has been returned back unclaimed. The observations would indicate that the notices were sent by Registered Post Acknowledgment Due (RPAD) and not through the process server. The Appellate Authority has held that it is necessary to send the notices through process server which decision cannot be faulted with. The removal of the Trustees from the Trust would have serious 3 of 4 35wp9570-23 consequences, and every effort should be made to ensure that proper service is effected on the outgoing Trustees and that they are given an opportunity of being heard. Although it is sought to be contended that the notices were served through the process server, perusal of the order of the Assistant Charity Commissioner does not reflect the same. The order of the Assistant Charity Commissioner proceeds on the basis that the notices/envelopes were returned back unclaimed which indicates that the same were sent by the RPAD and not through process server. Another crucial aspect is that subsequently the matter was remanded to the Assistant Charity Commissioner and an affidavit of evidence has already been filed.
8. As such, the petition which has been filed after almost seven months when the matter was to be concluded by the Assistant Charity Commissioner within a period of four months has been rendered infructuous as the impugned order has been implemented.
9. As far as the Application for operation of the bank account, the same is pending for consideration before the Assistant Charity Commissioner, who may decide the same in accordance with the law. In light of the above, there is no merit in the Petition, Petition stands dismissed.
[Sharmila U. Deshmukh, J.] 4 of 4 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 17/08/2024 14:10:57