High Court · 2024
Facts
1970.25wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 39 WRIT PETITION NO. 1970 OF 2025RAVIRAJ ABA PATIL AASHA RAMESH PATILVERSUS1. THE STATE OF MAHARASHTRA THROUGH ITS PRINCIPALSECRETARY, SCHOOL EDUCATION AND SPORTS DEPARTMENT,MANTRALAYA, MUMBAI2. THE COMMISSIONER FOR PERSONS WITH DISABILITY, PUNE3. THE DISTRICT SOCIAL WELFARE OFFICER, ZILLA PARISHAD,NANDURBAR4. MAHATMA PHULE YUVAK VIKAS MANDAL, DHULE5. KAI. SHRIRAM KARNAKAR MALI NIVASI MATIMANDVIDYALAYA, NANDURBAR ….Mr P. D. Bachate, Advocate for petitioners Mr M. M. Nerlikar, Addl.G.P. for respondent Nos.1 & 2Mr P. S. Patil, Advocate for respondent No.3Mr A. D. Khot, Advocate for respondent Nos.4 and 5 CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. DATE : 4th March, 2025PER COURT:1.We have heard both the sides finally.2.The petitioners are questioning the conduct of respondentNo.3/District Social Welfare Officer in abdicating his duties whileconsidering the proposal forwarded by respondent No.4/Managementfor grant of approval to the appointment of the petitioners as HealthWorker and Cook, respectively. 1970.25wp(2) 3.The learned advocate for the petitioners submits thatappropriate proposal was submitted pursuant to the appointments madeby the Management and respondent No.3/District Social WelfareOfficer ought to have considered the proposals on merits, but hasrefused to consider it only on the ground that there is dispute in theManagement and no authorized body is holding the office. He submitsthat it was none of the business for respondent No.3 to resort to suchreasoning. He was supposed to scrutinize the proposal independentlyon merits and could not have kept the proposals in limbo. Thepetitioners who have been appointed, working and receiving salaries,cannot be made to wait for resolution of the dispute in theManagement. 4.The learned advocate for respondent No.3, referring to thedecision in the matter of Murlidhar s/o Janrao Kale and others Vs.State of Maharashtra and others, (2011) 1 Mh.L.J. 849, which issubsequently referred to in the matter of Ashwini Sushant Patil Vs.State of Maharashtra and others in Writ Petition No.10894/2022decided on 15/04/2024, submits that it is in nobody’s interest to callupon respondent No.3 to take some decision regarding grant ofapproval when there is a dispute in the Management. He submits that
Legal Reasoning
1970.25wp(3) it is not clear as to if the Management who is otherwise authorisedlyholding the office has in fact appointed the petitioners. He submitsthat in exactly similar set of facts in the matter of Ashwini SushantPatil (supra), the division bench at Nagpur has suggested the trusteesto resort to the provisions of Section 41-A of the Maharashtra PublicTrust Act, 1950. He submits that the same course can be followed inthis matter as well. 5.Having heard both the sides and having perused therecord, it transpires that in similar set of facts, at least on twooccasions, the division benches of this Court in the matter of NavnathNarsingh Gore Vs. State of Maharashtra, 2021 (6) M.H.L.J. 118and in Sudipa Atul Patil vs. State of Maharashtra and others (Writpetition (L) No.15020/2022, decided on 20/09/2022) has directed theconcerned Education Officer to decide the proposals for grant ofapproval without resorting to rejection on the ground of dispute in theManagement. 6.In Ashwini Sushant Patil (supra), both these decisionshave been referred to, apparently distinguishing directions therein, onthe ground that the decision in the matter of Murlidhar Janrao Kale andothers (supra) was not brought to the notice of the division benches 1970.25wp(4) which decided the matter of Navnath Narsingh Gore (supra) andSudipa Atul Patil (supra). 7.Emphasis has been laid on the observations in paragraphNo.12 from Murlidhar Janrao Kale & others (supra), which read asunder :-“12. From perusal of the provision of Section 41 A of theBombay Public Trusts Act, we find that the CharityCommissioner is empowered to issue directions to any trustee ora person connected therewith to ensure that the trust is properlyadministered. Since schools, colleges and institutions are run bypublic trusts, it follows that any such directions will ensure thatthey are properly administered either during the pendency ofdisputed change reports or as the case may be. We, therefore,hold that an order under Section 41 A of the Bombay PublicTrusts Act can be passed to direct or recognise atrustee/trustees/Board of Trustees or the persons connected withthe trust whose names are either entered or not entered in theP.T. Register maintained under Section 17 of the Act, pendingdisputes between them or even otherwise. We, however, do notagree with the proposition stated in judgment dated 28.8.1999 inFirst Appeal No.354/1998, that 'somebody' other than whosename is to be found in P.T. Register can be empowered underSection 41 A of the Bombay Public Trusts Act. Section 41 A ofthe Bombay Public Trusts Act speaks of only 'trustees' or the'persons connected therewith' and not 'somebody'. It is also notpossible to agree with the statement that in the absence of anyorder under Section 41 A of the Bombay Public Trusts Act, onlythose persons whose names are entered in the register cancontinue to manage the affairs of the trust. It is a matter ofcommon experience that persons shown as trustees in theregister i.e. Schedule - I under Rule 5 of the Bombay Public 1970.25wp(5) Trusts Rules, 1951 are shown to exist as trustees even thoughtheir tenure/term as trustees as indicated in the bye-laws,memorandum of association or Rules or regulations had come toan end years back or such names are hardly one or two or whoare unable to run the trust for one or the other reason. Therefore,merely because names of such persons whose names exist inSchedule - I and whose term had expired or for any other reasonthey cannot function as trustees or fresh elections have been heldunder a particular fact situation, such trustees alone would notbe entitled to continue to manage the affairs of the Trust. In ouropinion, each case will have to be decided on the facts, materialsand evidence available on record and by applying the law. Thechange reports in respect of elections, filling up of vacancies oftrustees, schemes are filed with the Assistant CharityCommissioner and every endeavour should be made by theAssistant Charity Commissioner to decide such change reportsexpeditiously and in case of any dispute amongst the trustees,power under Section 41 A of the Bombay Public Trusts Act canbe invoked either suo motu by the Assistant CharityCommissioner or on application of the trustees or the personsconnected with the Trust or the Education or other authority forissuance of directions in the matter of administration of the Trustand its institutions. In the case in hand, the Deputy Director ofEducation ought to have directed the parties before him to eitherget the change reports decided one way or the other or getdirections under Section 41 A of the Bombay Public Trusts Actas to the persons/trustees authorized to manage the Trust and itsinstitutions. 8.It is to be noted that in the matter of Murlidhar JanraoKale (supra), the Deputy Director of Education had undertaken ascrutiny to reach the conclusion as to which body of the trustees wasactually holding the office and was authorized to take decision on
Decision
1970.25wp(6) behalf of the trust. With respect, that is not a fact situation in thematter in hand. The impugned communication proceeds on thepremises that there is no authorized Management. It is not clear as tohow respondent No.3 could reach this conclusion in the absence of anyreference to any objection being raised by somebody to theappointment of the petitioners. The impugned communication alsodoes not make it clear as to if any enquiry was made by respondentNo.3 with the office of concerned Assistant Charity Commissioner toascertain as to which Managing Committee is in the office and isauthorized to function on behalf of the trust. In view of such peculiarstate of affairs, in our considered view, the fact situation in the matterin hand will not be appropriately governed by the decisions in thematters of Murlidhar Janrao Kale (supra) and Ashwini Sushant Patil(supra) and would rather be governed by the decisions in the other twomatters, namely, Navnath Narsingh Gore (supra) and in Sudipa AtulPatil (supra).9.In the light of the above, we allow the writ petition partly.The impugned communication is quashed and set aside. RespondentNo.3 shall undertake scrutiny of the proposals of the petitioners andtake the decision, as expeditiously as possible and in any case within a 1970.25wp(7) period of six weeks, regarding grant of approval or otherwise to theappointment of the petitioners.(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk