Bombay High Court
Dr. Dayaram S/O Bondkuji Choudhari, ... vs Nanasaheb Vithobaji Tekade, Nagpur &2 ... on 27 July, 2017
Author: B.P.Dharmadhikari
Bench: B.P. Dharmadhikari, Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
LETTERS PATENT APPEAL NO. 7 OF 2009
in
WRIT PETITION NO. 342 OF 2008
1. Dr. Dayaram S/o. Bondkuji Choudhari,
Aged about 52 years,
Occupation : Doctor,
R/o. New Subhedar Layout,
Hoodkeshwar Road, Nagpur
2. Gunwant s/o. Domaji Ingole,
aged 53 years, Occ. Business,
R/o. Janki Nagar, Nagpur
3. Narayan s/o. Damji Wanjari,
aged about 62 years,
Occ. Retired Teacher,
R/o. Near Water Tank,
Dattatraya Nagar, Nagpur ... APPELLANTS
Versus
1. Nanasaheb Vithobaji Tekade,
Aged about Major,
R/o. 56, Reshimbag, Nagpur
2. Mamta w/o. Nanasaheb Tekade,
Aged about Major,
R/o. 56, Reshimbag, Nagpur
3. The Deputy Charity Commissioner,
Civil Lines, Nagpur ... RESPONDENTS
Shri. A. Shelat, Advocate for the appellants.
Shri. M.B. Turankar, Advocate for respondent no. 2.
Shri. Palshikar, AGP for respondent no.3.
.....
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CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 27, 2017.
ORAL JUDGMENT : (PER B.P.DHARMADHIKARI, J.)
Heard, Advocate Shri. Shelat. He is at pains to point out that learned Single Judge has by ignoring the issue regarding resignations was a disputed issue, made certain observations, though the same was pending in Change Report Proceeding. He further submits that finding of fact that the said resignation was send by appellants to the petitioners reached by learned Single Judge is also unacceptable. He argued that finding that the tenure of present appellants had then already expired is also erroneous.
2. Lastly, it is pointed out that as the challenge in Writ Petition No. 342 of 2008 before learned Single Judge was to directions issued under Section 41 A of Maharashtra Public Trust Act, the judgment is void and petition should have been placed before Division Bench for consideration.
3. Shri. M.B. Turankar, Advocate for respondent no. 2 and learned AGP on behalf of respondent no. 3, are opposing these contentions.
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4. Respondents submit that till the law was settled by Division Bench of this Court in case of Vanmala Mahadeorao Kamdi & Ors ...Vs.. The Deputy Commissioner and Ors - 2012 (3)Mh. L.J. 594, all matters were placed before learned Single Judge. Advocate Shri. Turankar adds that observations made by learned Single Judge in impugned judgment are only prima facie in nature to find out whether any of the legal rights of respondents were violated. He adds that during pendency of this petition, Change Report Proceeding are already finally decided and the reports filed by respondent nos. 1 and 2 have been accepted.
5. Advocate Shri. Shelat disputes this. According to him, the impart of observations of learned Single Judge on such adjudication can not be ignored.
6. We have no hesitation to accept statement made by Advocate Shri. Turankar that all change report proceedings are now over. However, if any such adjudication is prejudiced because of observations made by learned Single Judge in impugned judgment, it is open to appellants to demonstrate the same if any appeal or other proceedings in relation to such resignation or Change Report is pending before any forum. That forum has to adjudicate upon controversy as per material ::: Uploaded on - 02/08/2017 ::: Downloaded on - 08/08/2017 01:49:36 ::: jlpa7of09 4 legally produced before it. We direct that neither the observations by learned Single Judge in impugned judgment shall be used to influence such consideration nor such authority shall get influenced thereby.
7. In this situation, though the developments in the legal field in 2013 show that judgment delivered by learned Single Judge is without jurisdiction, even if that petition is treated as a petition before the Division Bench, we find that in changed situation, nothing better can be done.
8. Accordingly, with these directions and observations, we dispose of LPA.
9. No cost.
JUDGE JUDGE
******
Belkhede, PA
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