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Second submission of Mr. N. B. Khandare, learned Senior Advocate for the petitioner is that the authorities have held that the remaining trustees have no authority under the trust deed to remove the hereditary trustee. The authorities constituted have failed to appreciate that although the trust document does not provide for a separate clause for removal of trustees it is to be seen 16 wp9543.2025+ from the instrument of the trust that the automatic vacation of the post of the trustee is provided for under clause 11 of the constitution of the trust and that the remaining trustees appoint new trustees after 1/3rd of the trustees retired every 3 years. Since, the trustees appoint other trustees the power of removal exists in the remaining trustees as they also have a power of appointing the trustees. Thus, for having entered into a disqualification as mentioned under Clause 11(6) the trust by giving specific notice to Milind Govind Kshirsagar has removed him from trusteeship. Said exercise is valid in terms of Clause 11 of the provisions of the Trust.

14. In the instant case, Milind Kshirsagar is removed from the post of the trustee. So the issue is whether in terms of Clause 11(6) of the trust document whether the permanent trustee could have been removed by the other trustees, more particularly, in view of the fact that the directions issued by the Assistant Charity Commissioner to place the inspection report before the trustees for necessary action. Clause 11 provides for reduction of the trustees. It has not conferred any power upon the remaining trustees to remove any of the trustee member. The argument of the learned counsel for the petitioner is that the trustee is appointed by other trustees and, thus, the remaining trustees can also remove a trustee. This is a flawed argument and all the trustees are equal, once appointed and, unless, the constitution of the trust gives power to the remaining trustees to remove the defaulting trustee incurring disqualification under Rule 11(6) the remaining trustee cannot remove a defaulting trustee. There is no procedure prescribed in the constitution of the trust to remove a trustee. The only process by which the trustee can be removed is by following 28 wp9543.2025+ the process given under the Maharashtra Public Trusts Act and by the authorities constituted under the Act.

17. Thus, from the above, it will be clear that if the trustee is found violating Section 41D(1) or incurs disqualification under the bye-laws and in absence of any specific power under the trust instrument to remove trustee by the remaining trustee then the only option available is to approach the Assistant Charity Commissioner or Deputy Charity Commissioner, who may inquire into the matter and may submit report to the Charity Commissioner under Section 41B. The Charity Commissioner may then proceed under Section 41D take necessary action by following the procedure noted in Section 41D. The Charity Commissioner also has suo-motu power of inquiry and action as noted in Section 41D. In the instant case, the inquiry was instituted against the 34 wp9543.2025+ trustees and the report was received by the Assistant Charity Commissioner of the inquiry conducted by the Inspector. The remaining trustee does not have the power to remove the trustee. The argument of the learned counsel for the petitioner that the trustee could have been removed by the remaining trustees, in view of the directions of the Assistant Charity Commissioner is beyond the powers conferred upon the remaining trustees under the trust instrument and cannot be accepted. For removal of the trustee such a report can only be submitted to the Charity Commissioner. The Assistant Charity Commissioner cannot direct the trustees to do something which is beyond their authority and such is also not a direction in the report of the Inspector. Such a power of removal of trustee is not even conferred upon the Assistant Charity Commissioner under the Act.

The Assistant Charity Commissioner condoned the delay in filing Change Report No. 750/2003 by a reasoned order dated 19/11/2009, which was not challenged by the Respondents. The Joint Charity Commissioner approved the order of condonation of delay and its grounds but still in the judgment does not recognises the letters submitted by Shri Sudhir Kshirsagar That, there is no classification of trustees in the scheme and hence the class mentioned in the judgment as Permanent Hereditary Trustee is not in existence and hence the powers of the Board of Trustees to remove the Permanent Hereditary Trustee cannot be considered, it was understandable if it was discussed in the judgment regarding the powers for removal of trustees but it is not considered and the class considered is not in existence. Hence, the finding is contrary to the scheme itself.