Bombaybench High Court
Case Details
2025:BHC-AUG:13658 1IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.FIRST APPEAL NO.2877 OF 2023.1.Girish S/o Arun PujariAge- 38 years, Occu : Pujari, R/o Shri Yogeshwari Devi Temple, Tq. Ambajogai, Dist. Beed. 2.Krishna S/o Arun PujariAge- 32 years, Occu : Pujari, R/o Shri Yogeshwari Devi Temple, Tq. Ambajogai, Dist. Beed. 3.Prithwiraj S/o Asus PujariAge- 34 years, Occu : Pujari, R/o Shri Yogeshwari Devi Temple, Tq. Ambajogai, Dist. Beed. 4.Yogiraj S/o Mukund PujariAge- 31 years, Occu : Pujari, R/o Shri Yogeshwari Devi Temple, Tq. Ambajogai, Dist. Beed. 5.Dharmaraj S/o Mukund PujariAge- 29 years, Occu : Pujari, R/o Shri Yogeshwari Devi Temple, Tq. Ambajogai, Dist. Beed. 6.Rajan S/o Mukund PujariAge- 28 years, Occu : Pujari, R/o Shri Yogeshwari Devi Temple, Tq. Ambajogai, Dist. Beed. ....APPELLANTS.VERSUS
Legal Reasoning
22order is passed on the basis of alleged right of the said persons toassume office of Priest/Trustee on demise of their father Arun Pujariand the earlier order dated 09.08.1988, by which it was held that ArunPujari was not a trustee was suppressed from the authority. It istherefore contended that the order dated 07.08.2015 is a nullity in theeyes of law. The said contention could not have been decided withoutaffording opportunity of hearing to them. The said question wasrequired to be decided after due compliance with the principles ofnatural justice and on affording opportunity of hearing. In myconsidered opinion, even if it is to be held that the appellants cannotclaim to be Trustees despite the Order dated 07/08/2015 in theirfavour in the light of earlier order dated 09/08/1988, the said questionalso cannot be decided without hearing them. In this context,reference needs to be made to the Judgment of the Hon’ble SupremeCourt in the matter of S.L. Kapoor Vs. Jagmohan reported in (1980) 4SCC 379, wherein it is held as under :-“24.…….In our view the principles of natural justiceknow of no exclusionary rule dependent on whether itwould have made any difference if natural justice hadbeen observed. The non-observance of natural justiceis itself prejudice to any man and proof of prejudiceindependently of proof of denial of natural justice is 23unnecessary. It ill comes from a person who hasdenied justice that the person who has denied justice isnot prejudiced. As we said earlier where on theadmitted or indisputable facts only one conclusion ispossible and under the law only one penalty ispermissible, the court may not issue its writ to compelthe observance of natural justice, nor because it is notnecessary to observe natural justice but, because courtsdo not issue futile writs. We do not agree with thecontrary view taken by the Delhi High Court in thejudgment under appeal.”30)As regards the appellant nos.4 to 5, there is no orderrecording their names as trustees. However, it is their contention thatthey are entitled to the office of trustee by virtue of inheritance. This iscommon ground between the appellant nos.1 to 3 and 4 to 6. Therespondents contend that the right to inheritance is with respect tooffice of Priest and not office of Trustee.31)It needs to be emphasized that even if their status ofappellants as trustees or right to become trustees by inheritance isdisputed, the issue pertaining to their status also cannot be decidedwithout hearing them. Even if it is to be held that the appellants arenot entitled to audience since they are not Trustees, the said issue alsoneeds to be decided after affording an opportunity of hearing to them. 2432)It will be pertinent to mention that initially the Muntakhabunder the Hyderabad Atiyat Inquiries Act was granted to Vasrubai w/oYograj Ram Rao (Soma Guru). After her demise, the grant wasinherited by her decedents vide orders of inheritance passed under thesaid Act. Vide order dated 13.04.2012, the order of Virasat(Succession) was passed in favour of the appellant nos.1 to 3 andrespondent no.17 on demise of their father Arun Pujari, who washolding the Grant by succession during his life time. Perusal of thescheme framed by the learned Assistant Charity Commissioner willindicate that the right of the appellants to receive offerings offered toGoddess within the sanctum santoram as granted under the grants isalso altered. Thus the order passed is adverse to their interest. It isobvious that order adverse to the interest of a person cannot be passedwithout hearing the concerned person. The impugned order framingscheme is therefore liable to be quashed and set aside on the groundthat the appellants are not afforded opportunity of hearing althoughtheir rights to receive offerings is adversely affected. The impugnedorder is unsustainable on the ground that it is passed in breach ofprinciples of natural justice.33)So far as the right to receive offerings is concerned, it is apersonal right of descendants of original grantee Narsubai. The 25appellant are undisputedly descendants of Narsubai. The right toreceive offerings is a heritable right, is also undisputed. In view of theabove, after demise of Arun and Mukund, the names of their legalrepresentatives were required to be brought on record. This was alsonot done and the scheme is formed whereby their right to receiveofferings is also restricted to perishable commodities only. The rightto receive offerings of non-perishable items is taken away. This alsocould not have been done without hearing the appellants.34)The learned advocates for the respondents have stronglyopposed the contention with respect to opportunity of hearing to theappellants on the ground that the fathers of the appellants, Late ArunPujari and Mukund Pujari, were parties to the Scheme Application No.258/2006. It is contended that the appellants were aware about thesaid proceeding and yet they did not participate in the proceeding afterthe demise of their respective fathers. It is contended that theappellants are, therefore, estopped from assailing the order on thiscount. The said contention is also liable to be rejected since ArunPujari, the father of the appellant Nos. 1 to 3, had died in the year2006 and the order is passed after a period of around 10 yearsthereafter. Likewise, Mukund Pujari expired on 17.09.2015. In myconsidered opinion, it was the duty of the learned Assistant Charity 26Commissioner to issue notice and afford opportunity of hearing to theappellants and in any case to the appellant Nos. 1 to 3, in whose favouran order recognizing them as Trustees of the Trust was passed. Theorder cannot be justified merely on the ground that the appellants wereaware about the proceedings. The learned Authority was under legalobligation to issue notice and hear the Trustees. The said statutoryduty is observed in breach. Apart from this, their names were alsorequired to be brought on record as legal representatives of theirfathers late Arun and Mukund, since their personal right to receiveofferings in the temple was also involved in the matter. Thecontention of the respondents that the impugned order cannot be setaside on the ground that the appellants were aware about the pendingproceedings cannot be accepted and is liable to be rejected.POINT NO. (iv) :- 35)The other contention raised by Mr. Sapkal is that thelearned Assistant Charity Commissioner has not arrived at thesubjective satisfaction on the basis of the enquiry conducted by him.He contends that the subjective satisfaction to frame the scheme isarrived at on the basis of the settlement between the parties. He alsocontends that the scheme is framed as per the settlement and not byindependent application of mind. Per contra, the learned advocates for 27the respondents argued that the decision is not based merely oncompromise. They contend that while the evidence was being recordedin the matter, the parties arrived at settlement in the interest of theTrust. They contend that the learned Assistant Charity Commissionerstopped the enquiry since there was no issue before him with respect tothe need to frame a scheme since both the parties agreed that it wasnecessary to frame the same. They further contend that admittedly,there is no scheme in existence for proper administration and day-to-day functioning of the Trust and, therefore, it was necessary to frame ascheme under Section 50-A of the MPT Act.36)Perusal of the Judgment passed by the learned AssistantCharity Commissioner would demonstrate that the enquiry wasinitiated for framing of scheme. The evidence was being recorded inthe proceedings. While the evidence was being recorded, a JointCompromise Pursis came to be filed by the parties to both the schemeapplications viz. Scheme Application Nos. 257/2006 and 258/2006.In view of the said settlement, the enquiry was closed and the schemehas been framed. It is apparent that the enquiry was halted in view ofthe compromise. The inference which can be drawn from such act onthe part of the learned Authority is that the compromise between theparties before it was considered as a circumstance by the learned 28Authority to stop further enquiry, otherwise there was no need toabruptly stop the proceedings.37)Perusal of the order passed by the learned AssistantCharity Commissioner demonstrates that two points were framed fordetermination with respect to the need to frame a scheme and whatshould be the appropriate scheme. The learned Assistant CharityCommissioner has observed that there is no set of Rules andRegulations for proper administration of the Trust and, therefore, itwas necessary to frame a scheme for proper administration of theTrust. The subjective satisfaction regarding needs to frame a scheme asalso the contents of the scheme must be arrived at after hearing theappellant Nos. 1 to 6. Since the order is passed in breach of the saidmandatory provision and the matter needs to be remanded on the saidground, it will not be necessary to make further comments with respectto merits of the matter.POINT NO. (v) :- 38)The learned advocates for the respondents contend thatthe matter should not be remanded since the appellants have notprayed for remand of the proceedings. In my considered opinion, it isin the interest of the respondents that the matter is remanded for freshconsideration inasmuch as if the matter is not remanded, the impugned 29order, which is being quashed, will cease to operate and then if anyparty wants a scheme to be framed, fresh proceedings will have to befiled, which will not be in the interest of the respondents. It is alsopertinent to mention that it is the contention of the respondents thatthere existed no scheme for proper administration and functioning ofthe Trust. The temple in question is important center of worship. Inthat view of the matter, it will be appropriate that the proceedings areremanded to the learned Assistant Charity Commissioner for freshdecision in accordance with law.39) The order is set aside principally on the ground that theappellants have not been heard before passing of the order framingscheme. The case is not decided finally on merits. In that view of thematter also it will be appropriate in the interest of justice to direct thelearned Assistant Charity Commissioner to decide the matter afreshafter affording opportunity of hearing to the appellants. 40)In the appeal before the learned District Court, theappellants had filed an application for grant of stay to implementationof the scheme framed by the learned Assistant Charity Commissionervide Order dated 19.11.2016. The said application for grant of staywas rejected by the learned District Court. The parties agree that thescheme framed by the impugned order is implemented and affairs of 30the Trust are being managed as per the said scheme. In the presentmatter also, there is no interim order granting stay to implementationof the impugned scheme. In that view of the matter, it will beappropriate in the interest of justice that till adjudication of the schemeapplication afresh by the learned Assistant Charity Commissioner, theadministration of the Trust will be governed by the impugned scheme.This arrangement will be subject to final adjudication of the schemeapplication by the learned Assistant Charity Commissioner.41)In view of the above, the appeal is partly allowed in thefollowing terms :-ORDER 1)The judgment and order passed by the learned District Judge-3, Ambajogai, District Beed in Trust Appeal No.1/2019 dated28.02.2023 is hereby quashed and set aside. Similarly, thecommon judgment and order passed by the Assistant CharityCommissioner, Beed in Scheme Application Nos.257 and 258of 2006 dated 19.11.2016 is also quashed and set aside.2)The matter is remanded to the learned Assistant CharityCommissioner, Beed for deciding the proceedings afresh givingan opportunity of hearing to the appellants.3)The parties are directed to appear before the Assistant CharityCommissioner, Beed on 16.06.2025. The parties are put tonotice that a separate notice for appearance will not be issued. 314)The learned Assistant Charity Commissioner, Beed is directedto decide the proceedings within a period of nine months fromthe date of appearance of parties i.e. on or before 16.03.2026.5)The administration of the Trust will be conducted as per theexisting scheme framed under the impugned order dated19.11.2016 till the final decision in the matter.6)All findings recorded above are for the purpose of determiningthe right of audience claimed by the appellants. The SchemeApplication will be decided on its own merits, without beinginfluenced by the above observations. JUDGE.
Arguments
21.The State of MaharashtraThrough the Asst. Charity Commissioner, Charity Commissioner Office, Dist. Beed 2.The Tahsildar,Tahsil Karyalay, Ambajogai, Tq. Ambajogai, Dist. Beed. 3.Rajkishore S/o Kantaprasad ModiAge : 55 years, Occ : Business, R/o Guruvarpeth, Tq. Ambajogai, Dist. Beed. 4.Suhas S/o Dagdurao MohiteAge : 41 years, Occ : Business, R/o Guruvarpeth, Tq. Ambajogai, Dist. Beed. 5.Prithviraj S/o Shivajirao SatheAge : 53 years, Occ : Business, R/o Guruvarpeth, Tq. Ambajogai, Dist. Beed. 6.Mr. Bhagwan S/o Sitaram ShindeAge : 51 years, Occ : Business, R/o In front of Subhog Mangal Karyalaya, Mandwa Road, Tq. Ambajogai, Dist. Beed. 7.Kamlakar S/o Shivajirao ChausalkarAge : 58 years, Occ : Business, R/o Chausalkar Colony, Tq. Ambajogai, Dist. Beed. 8.Dr. Sandhya W/o Amol JadhavAge : 41 years, Occ : Business, 3R/o Mitra Nagar, Shivaji Chowk, Near Brij Hotel, Latur, Dist. Latur. 9.Akshay S/o Nandkishor MundadaAge : 33 years, Occ : Business, R/o “AAI Niwas”, Beed Road, Tq. Ambajogai, Dist. Beed. 10.Giridhari S/o Nandlal BharadiyaAge : 69 years, Occ : Business, R/o Om Shanti Colony, Tq. Ambajogai, Dist. Beed. 11.Gauri W/o Lalit JoshiAge : 45 years, Occ : Household, R/o Kuttar Vihir, Tq. Ambajogai, Dist. Beed. 12.Shriram S/o Avdhut DeshpandeAge : 55 years, Occ : Employee of trust, R/o Deshpande Galli, Tq. Ambajogai, Dist. Beed. 13.Sharad S/o Shivajirao LomteAge : 63 years, Occ : Advocte, R/o Gaund Galli, Tq. Ambajogai, Dist. Beed. 14.Pooja w/o Ram KulkarniAge : 38 years, Occ : Household, R/o Deshpande Galli, Tq. Ambajogai, Dist. Beed. 15.Ashok S/o Tulshiram LomteAge : 63 years, Occ : Pensioner, R/o Khadkpur, Tq. Ambajogai, Dist. Beed. 416.Balasaheb S/o Dajisaheb LomteAge : 68 years, Occ : Agriculturst, R/o Khadakpur, Tq. Ambajogai, Dist. Beed. 17.Sarang S/o Arun PujariAge : 38 years, Occ : Household, R/o Shri Yogeshwari Devi Temple, Tq. Ambajogai, Dist. Beed. 18.Sanjay S/o Kisanrao BhosleAge : 38 years, Occ : Business, R/o Khadakpur, Tq. Ambajogai, Dist. Beed. 19.Ulhas S/o Gopalrao PandeAge : 52 years, Occ : Agri., R/o Bhatt Galli, Tq. Ambajogai, Dist. Beed. ....RESPONDENTS....Mr. V.D. Sapkal, Senior Advocate a/w Mr.R.N. Patil i/b Mr.S.R. Sapkal,Advocate for the appellants. Mr. S.S. Dande, AGP for Respondent Nos.1 and 2. Mr. S.V. Adwant, Advocate for Respondent Nos.3 and 5.Mr. D.A. Karnik, h/f Mr. Vivek Dhage, Advocate for Respondent No.8.Mr. R.L. Kute, Advocate for Respondent No.15.Mr. A.A. Khande, Advocate for Respondent No.17.Mr. P.P. Dama, Advocate for Respondent No.18 ....CORAM:ROHIT W. JOSHI, J. DATE OF RESERVING THE JUDGMENT :03.03.2025 DATE OF PRONOUNCING THE JUDGMENT :06.05.2025 5JUDGMENT.1)The present appeal is filed under Section 72(4) of theMaharashtra Public Trusts Act, 1950 (MPT Act). The controversy inthe matter pertains to Yogeshwari Devi Mandir, Ambajogai, District-Beed. There exists an ancient temple of a Goddess Yogeshwari Devi atAmbajogai, Tahsil-Ambajogai, District-Beed. A Trust namedYogeshwari Devi Ambajogai, District - Beed came to be registeredunder the provisions of the MPT Act in the year 1965 vide RegistrationNo. A-999 (Beed). The first scheme of the Trust came to be framedvide Judgment & Order dated 28/02/1973 passed by the learnedCharity Commissioner, Maharashtra State, Mumbai in Application No.6/1971. The said scheme was challenged by one Haripant KisanraoPujari by filing a proceeding under Section 72(1) of the MPT Act,which came to be registered as Trust Application No. 86/1988. Theparties to the Trust Application No.86/1988 filed a Joint Pursis beforethe Additional District Judge, Ambajogai and in view of the said Pursis,the Order dated 23/11/1973 passed by the learned CharityCommissioner framing scheme under Section 50-A came to be set asideand the matter was remanded to the Joint Charity Commissioner, Laturfor fresh adjudication vide Order dated 28/02/2001. The learned JointCharity Commissioner, Latur had thereafter transferred the proceedings 6to the learned Assistant Charity Commissioner, Beed. The applicationcame to be registered as Scheme Application No.257/2006. Likewise,one Rajkishor Kantaprasad Modi and Suhas Dagdurao Mohite, therespondent Nos. 3 and 4 in the present appeal, filed a separateapplication for framing of scheme under Section 50-A of the MPT Act,which came to be registered as Scheme Application No. 258/2006. 2)Pending adjudication of the said applications, respectiveparties in both the proceedings arrived at a compromise and after thematter was so compromised, the learned Assistant CharityCommissioner, Beed disposed of both the applications by commonJudgment & Order dated 19/11/2016 framing a scheme foradministration of the said Trust in exercise of the powers under Section50-A of the MPT Act. 3)This common Judgment framing scheme came to bechallenged by the present appellants by filing the appeal before thelearned District Court, Beed under Section 72(1) of the MPT Act. Thesaid appeal came to be registered as Trust Appeal No. 1/2019. Thelearned District Judge-3, Ambajogai, District-Beed has dismissed thesaid appeal vide Judgment dated 28/02/2023. 74)In this backdrop, the present appeal is preferred underSection 72(4) of the MPT Act. 5)It is case of the appellants that Munthakhab with respectto the temple of Goddess Yogeshwari Devi and two other temples ofGod Ganpati and God Maroti was granted to one Narsubai Wd/oYograj Ramrao in Fasli Year 1294 i.e. English Calendar Year 1884. Itis contended that in terms of the said Munthakhab, Narsubai wasentitled to receive the offerings offered by devotees to GoddessYogeshwari Devi within the sanctum sanctorum i.e. Gabhara of thetemple. The said grant is made under the provisions of the AtiyatEnquiries Act. It is claimed that the said grant is a heritable grant andaccordingly, after the demise of Narsubai, the right vested with her son,Kisan S/o Yogiraj, and after his demise, the Inam devolved upon hisson Haripant Pujari S/o Kisan Pujari. It is then claimed that on demiseof Haripant Pujari, the Inam devolved upon his two sons, ArunHaripant Pujari and Mukund Haripant Pujari. The contention is thatthe Inam of the property was granted in favour of Narsubai with a rightof inheritance. It is contended that orders of Virasat (inheritance) ofthe Inam/Munthakhab are passed by the Competent Authority underthe provisions of the Atiyat Enquiries Act. The learned senior counselappearing for the appellants has drawn my attention to Schedule-I of 8the said Trust, in which initially the name of Kisan Pujari was recordedas a trustee. He then draws attention to the fact that the names ofArun Haripant Pujari and Mukund Haripant Pujari were recorded asTrustees in the Schedule-I. It is further stated by the learned advocatethat after the death of Arun Pujari, the names of his sons, namely,appellant Nos. 1 to 3 and respondent No. 17, were recorded as Trusteesof the Trust vide Order dated 17/08/2015 passed by the learnedAssistant Charity Commissioner, Beed in Change Report No. 799/2014.6)The principal contention of Mr. Sapkal, senior counsel for theappellants, is that the appellants, who are Trustees of the Trust, have astatutory right of audience in Section 50-A proceedings. He contendsthat the scheme is framed without issuing notice and affordingopportunity of hearing to the appellants, who are Trustees and,therefore, the order framing scheme is liable to be quashed and setaside on account of non-compliance of the mandate of the saidprovision. He further contends that the learned Assistant CharityCommissioner has abruptly stopped enquiry on the basis of thecompromise arrived at between the parties, which is impermissible inlaw. The learned senior advocate contends that jurisdiction to frame ascheme under Section 50-A of the MPT Act can be exercised only onarriving at a satisfaction that there exists a need and necessity for 9framing of a scheme. This satisfaction is required to be arrived atindependently by the learned Assistant Charity Commissioner and thesame could not have been done on the basis of the compromise arrivedat between the parties. He contends that the subjective satisfaction ofthe Authority in the present matter is not based on independentassessment of facts but, on the compromise between the parties to theproceedings before him. 7)Per contra, it is argued by Shri S.V. Adwant, D.A. Karnik,R.L. Kute, A.A. Khande and P.P. Dama, the learned Advocates forrespondent Nos.3, 5, 8, 15, 17 and 18 respectively, that the appellantscannot claim the status of Trustees and were therefore, not entitled forhearing in the matter as contended by them. They state that the Trustwas registered in the year 1965 and there was no settled scheme foradministration of the Trust, as a consequence of which, it had becomenecessary to frame an appropriate scheme under Section 50-A of theMPT Act. They have contended that the parents of the appellants, lt.Arun and Mukund, had also consented for framing of scheme. Theyfurther contended that the scheme framed by the learned AssistantCharity Commissioner is properly framed with due application of mindand it lays down a detailed procedure for appropriate administrationand functioning of the Trust. In the light of aforesaid, they contend 10that there is no merit in the appeal and the same is liable to bedismissed. 8)The learned advocates for the respondents disputed thestatus of the appellants as Trustees. They contend that since theappellants are not Trustees, there was no question of affording anyopportunity of hearing to them. Mr.Advant contends that, office ofPriest is a heritable office. The appellants can only claim right to offerprayers and perform rituals in the temple on the basis of the allegedright of holding post of Priest by inheritance. He contends that a Priestcannot claim status of trustee. He has placed reliance on severalauthorities to contend that a Priest or Poojari or Archaka is merely aservant and cannot claim to be a trustee.9)He further contends that the appellants are claiming to betrustees by inheritance on demise of their fathers, Arun Pujari andMukund Pujari. In this regard, he states that names of Arun andMukund were recorded as Trustees in Schedule-I pursuant to theorders passed in Change Report Nos.491/1971 and 408.1978. He hasdrawn my attention to the Judgment dated 09/08/1988 passed by thelearned Joint Charity Commissioner, Aurangabad in Suo Motu RevisionApplication No. 4/1986, by which the orders passed in Change Report 11Nos. 491/1971 and 408/1978 came to be quashed and set aside. Hecontends that in view of the Judgment dated 09/08/1988, Arun Pujariand Mukund Pujari, the fathers of the appellants, cannot claim status ofTrustees. It is then contended that the present appellants are claimingto be Trustees by virtue of inheritance, however, since their fathers areheld not to be Trustees, the appellants also cannot claim to be Trusteesby inheritance. As regards the Order dated 07/08/2015 passed inChange Report No. 799/2014, whereby the names of the appellantNos. 1 to 3 and respondent No. 17 are ordered to be recorded asTrustees, it is contended that the said Judgment & Order dated07/08/2015 is passed by the learned Assistant Charity Commissionerwithout noticing the Judgment & Order dated 09/08/1988. It iscontended that foundation of the order accepting Change Report No.799/2014 and recording the names of the appellant Nos. 1 to 3 andrespondent No. 17 as Trustees is that they are sons of Late Arun Pujari.In view of the aforesaid submissions, it is contended that there is nofoundation for the appellants to contend that they are trustees andtherefore, entitled to right of audience as per mandate of Section 50-A(2) of the MPT Act. 10)As regards to subjective satisfaction, it is contended thatthe fathers of the appellants, lt. Arun Pujari and Mukund Pujari, were 12parties to the proceedings and had consented for framing of a scheme.It is stated that there exists no scheme for proper administration of theTrust and the grant made under the Atiyat Enquiries Act also does notprovide for administration and day-to-day functioning of the Trust, as aconsequence of which framing of a proper scheme was absolutelyessential. 11)As regards contents of the scheme, it is stated that thelearned Assistant Charity Commissioner has not framed the schememerely acting on the compromise but, has also applied his mind andhas made appropriate changes in the draft of scheme submitted by theparties. In the light of aforesaid, it is urged that the learned AssistantCharity Commissioner as also the learned District Court have properlyapplied their mind to the facts of the case and the provisions of lawand, therefore, the impugned Judgments & Orders do not warrant anyinterference. 12)In reply to the submissions canvassed by the learnedadvocate for the respondents, the senior advocate Mr. Sapkal for theappellants contends that right to assume the office of trustee is by wayof inheritance under the original grant. He contends that this positionwas altered by the scheme framed in the year 1973, which wasquashed vide order dated 28/02/2001. The contention is that since the 13scheme framed in the year 1973 was set aside, the right to assumeoffice of trustee by inheritance will have to be recognized andaccordingly it needs to be held that after the demise of Haripant Pujari,his sons Arun Pujari and Mukund Pujari were holding the office of thetrustee by inheritance. Likewise, after death of Arun Pujari on20.12.2006, his sons the appellant nos.1 to 3 and the respondent no.7became trustees by virtue of inheritance as per the original grant.Likewise he contends that on demise of Mukund Pujari on 17.09.2015,his sons the appellant nos.4 to 6 also became trustees by inheritance. Itis therefore submitted that the appellants should have been affordedopportunity of hearing in compliance of statutory mandate of Section52-A(2) of the MPT Act. In the alternative, he contends that the orderin Change Report No. 799/2014 is based on a Resolution dated21/07/2012. He contends that even if it is assumed that the appellantNos. 1 to 3 cannot assume the office of trustees by inheritance, itcannot be disputed that the change report based on Resolution hasbeen accepted by the learned Assistant Charity Commissioner videorder dated 07/08/2015. He states that the said order was notchallenged and was therefore binding on all concerned.13)In view of the above, Mr.Sapkal strongly contends that theimpugned order framing scheme is liable to be quashed on account of 14failure on the part of the learned authority to afford opportunity ofhearing to the appellants. 14)Apart from the mends, the respondents have a technicalobjection is raised with respect to the prayer clause in the appeal.Drawing attention to the prayer, it is contended by the learnedadvocates that the appellants have merely prayed to quash and setaside the Judgment dated 28/02/2023 passed by the learned DistrictJudge in Trust Appeal No. 1/2019, however, there is no prayer toquash the Judgment & Order dated 19/11/2016 passed by the learnedAssistant Charity Commissioner framing scheme under Section 50-A.15)The learned senior advocate for the appellants contendedthat the order framing scheme merges with the appellate order passedby the District Judge and, therefore, it was not necessary to challengethe initial order passed by the learned Assistant Charity Commissioner.However, he has also made oral motion seeking leave to amend theappeal in order to incorporate prayer to challenge the order framingscheme passed by the learned Assistant Charity Commissioner. He hasdrawn attention to the order dated 11.10.2024 granting leave toamend Civil Application No.9029/2023, which is an application forgrant of stay. He contends that inadvertently leave was sought toamend the civil application and not the memorandum of appeal. He 15contends that leave should be granted to amend the memorandum ofappeal in order to avoid technicalities. 16)Mr. Adwant, the learned advocate appearing for therespondent Nos. 3 and 5, opposed the motion contending that the samewas made beyond the prescribed period of limitation. He furthercontended that the order of first appellate authority will merge in theorder of appellate authority only if the appeal is allowed and the orderis reversed. He contends that if the appeal is dismissed, the doctrine ofmerger will not apply. 17)On hearing the respective submissions, the followingpoints arise for consideration in the present appeal :- (i)Is the appeal liable to be dismissed on the ground thatthere is no prayer to challenge the initial order passedby the Assistant Charity Commissioner althoughappellate order passed by the learned District Judge ischallenged ?(ii)Should leave to amend prayer clause be granted to theappellant in order to incorporate specific prayer inorder to challenge the order passed by the AssistantCharity Commissioner ?(iii)Are the impugned orders bad in law since the scheme isframed without hearing the appellants ? 16(iv)Has the learned Assistant Charity Commissionerproperly arrived at satisfaction for the need to framethe scheme under Section 50-A of the MPT Act ? POINT NOS.(i) and (ii) :- 18)I am not impressed with the objections raised by thelearned advocates for the respondent Nos. 3 and 5. His contention thatthe doctrine of merger will apply only if the appeal is allowed and theorder of first authority is reversed by the first appellate authority is notcorrect. The principle, which is canvassed by the learned advocate,applies in cases of review and not in cases of appeal. In a case ofreview, it is well settled that the initial order does not merge with theorder of review, if the review is rejected, however, if the review isallowed, the original order merges with the order of review. However,in cases of appeal, irrespective of the outcome of the appeal, the orderby the first authority will always merge with the order of the appellateauthority. In this regard support can be taken from the judgments ofHon’ble Supreme Court is cases of (1) Kunhayammed .vrs. State ofKerala reported in (2000) 6 SCC 359, (2) Chandi Prasad .vrs. JagdishPrasad reported in (2004) 8 SCC 724 and (3) Shanthi .vrs. T.D.Vishwanathan reported in (2019) 11 SCC 419. In that view of thematter, the prayer in the appeal for quashing and setting aside theJudgment & Order dated 28/02/2023 passed by the learned District 17Judge in Trust Appeal No. 1/2019 will also include the challenge to theJudgment & Order dated 19/11/2016 passed by the learned AssistantCharity Commissioner. 19)Even otherwise, the objection is technical in nature and isliable to be rejected as such. I am also of the opinion that in cases likethe present, where inadvertently some prayer is not incorporated in thememo of appeal, the amendment in prayer should relate back to thedate of filing of appeal. The appeal is filed on 02/05/2023 within theprescribed period of limitation.20)In view of aforesaid, the objection raised by Mr. Adwant isrejected and leave is granted to amend the prayer clause in order toincorporate the prayer for quashing and setting aside the Order dated19/11/2016 passed by the learned Assistant Charity Commissioner.21)It needs to be mentioned that during the course of hearingwhen this objection was raised, it was informed that the preliminaryobjection was rejected and leave to amend the appeal memo wasgranted and that reasons and formal order in that regard will beincorporated in the final judgment itself.POINT NO. (iii) :- 1822)Arun Pujari and Mukund Pujari are arrayed as non-applicant nos.4 and 5 respectively in scheme application no. 258/2006.However, pending the adjudication of the said application, both Arunand Mukund expired on 20.11.2006 and 17.09.2015 respectively. Theorder framing scheme is passed by the learned Assistant CharityCommissioner on 19/11/2016 i.e. after the demise of Arun andMukund. As regards appellant nos.1 to 3, they were recognized astrustees vide order dated 07.08.2015 passed in change application no.799/2014. Perusal of the order depicts that the same is passed on thebasis of a resolution dated 31.07.2012, appellant nos.1 to 3 andrespondent no.17 were inducted as trustees. It is undisputed that thesaid order is not challenged.23)I have perused the application in Change Report No.799/2014 and the Judgment dated 07/08/2015 passed therein. Itappears that the application for incorporating the names of theappellant Nos. 1 to 3 and respondent No. 17 was moved for recordingtheir names as Trustees in view of the Resolution dated 21/07/2012.It further appears that the said Resolution is passed in view of thedemise of Arun Pujari, who is stated to be the Chief Priest. Theapplication also states that the names should be recorded as ChiefPriest. A perusal of the Order dated 07/08/2015 accepting the change 19report will demonstrate that the learned Assistant CharityCommissioner has referred to the fact of demise of Arun Pujari on20/12/2006. It is mentioned in the order that Late Arun Pujari wasChief Priest and after his demise, his sons were entitled to the Office ofChief Priest by inheritance. In that view of the matter, the learnedAssistant Charity Commissioner has ordered that the names of theappellant Nos. 1 to 3 and respondent No. 17 be recorded in Schedule-Iof the Trust. 24)The contention of the respondents is that the prayer in theapplication was for recording the names as Chief Priest and not asTrustees.25)It appears from perusal of the order that the learned AssistantCharity Commissioner has passed the order for recording the names ofthe appellant Nos. 1 to 3 and respondent No. 17 as Trustees/Priests.What transpires from the order is that the learned Assistant CharityCommissioner has ordered to record the names of the appellant Nos. 1to 3 and respondent No. 17 in Schedule-I of the Trust in exercise of thepowers under Section 22 of the MPT Act. The power under Section 22is to determine the correctness or otherwise of events relating to entriesrecorded in Schedule-I of the Public Trust. The format of Schedule-I isprovided under Rule 5 of the MPT Rules. The statutory format 20provides for recording the names of the Trustees. The learnedAssistant Charity Commissioner has also directed recording of thenames as Trustees/Pujaries. Although it can be inferred from the orderthat the same is based on assumption of right to the Office of Trusteesby inheritance, the order also makes a reference to the Resolution forappointing the appellant Nos. 1 to 3 and respondent No. 17 asTrustees. 26)It is undisputed that this Order dated 07/08/2015 is notchallenged till date. The order is passed by the Competent Authorityhaving jurisdiction to pass the same. Even if it is assumed that theorder is erroneous, it will have to be challenged. The order cannot beignored unless it is set aside. 27) The other contention of the respondents is that theappellants cannot claim right to the office of trustees by virtue ofinheritance in view of the order dated 09/08/1988 passed in Suo MotuRevision Application No. 4/1986, wherein it is held that the fathers ofthe appellants were not Trustees of the Trust. In this regard, it needsto be mentioned that the Order dated 07/08/2015 recording the namesof the appellant Nos. 1 to 3 and respondent No. 17 as Trustees is notpassed merely on the basis of inheritance. It also refers to theResolution appointing the appellant Nos. 1 to 3 and respondent No. 17 21as Trustees. In view of the Resolution, it cannot be said that the Orderdated 07/08/2015 is ineffective and inconsequential in view of theOrder dated 09/08/1988 since right to the Office of Trustees is notclaimed merely by inheritance but also on the basis of the Resolution.28)Thus, there is an order passed by the Competent Authorityrecording the names of the appellant Nos. 1 to 3 as Trustees. It isundisputed that a scheme under Section 50-A cannot be framedwithout hearing the Trustees. It is also undisputed that the appellantNos. 1 to 3 are not parties to the scheme proceedings and the order inthe said proceedings is passed without affording opportunity of hearingto them. In my considered opinion, it was necessary for the learnedAuthority to issue notice and hear the appellant nos.1 to 3 beforepassing any order before deciding the scheme application. It also needsto be mentioned that when there exists an order recognizing the statusof the appellant Nos. 1 to 3 as trustees, the same cannot be ignored andit cannot be contended that they did not have right to be heard in thematter on the ground that they are not Trustees.29)The contention of the respondents is that the order dated07/08/2015 by which names of appellant nos.1 to 3 and respondentno.17 are recorded as trustees by accepting the change report, isobtained by practicing fraud upon the authority, in as much as, the said