1

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD
WRIT PETITION NO. OF 2021
DISTRICT: AURANGABAD

Anil S/o Chintaman Mehatre … PETITIONER

VERSUS
Sureshchand S/o Hukumchand Kasliwal
and others … RESPONDENTS
SYNOPSIS

Sr. Dates Particulars of Events

No.
1 -- The present petitioner is original intervener in the appeal
proceedings bearing No.407/2018. The petitioner is an
interested person in view of provisions of Sec.2 (10) (d) of
Maharashtra Public Trusts Act, 1950.
2 28.08.2019 The intervention application came to be allowed in view of
order dated 28.08.2019 passed by learned Joint Charity
Commissioner Aurangabad and as such the petitioner
participated in the appeal proceedings as respondent.
3 -- The present proceedings are arising out of the Change
Report in respect of change in the administration of “ Shri.
Chintamani Parasnath Digambar Jain Atishaya Kshetra
Kachner” bearing PTR No.A-3054 (A).
4 -- The respondent No.1 has filed the Change Report is in
respect of deletion of name of trustee Shri. Tansukhlalji
Ganeshlal Thole (deceased) from the record of trust on the
ground of cause of death, therefore to delete the name of
said trustee from the Board of Trustee of the Trust.
5 -- The Change Report filed further to induct the name of Shri.
Prakashchand Puranmal Patni on vacant place in the Board of
Trustees as per provisions of Trust deed. As per Rule-10 of
Trust Deed/Rules and Regulation of the Trust the Trustee
shall be in office and shall hold power for lifetime. Board of
Trustee shall not more than 11 and less than 7.
6 -- The Mode of succession of trusteeship is at Rule 13 of Rules
& Regulation of Trust shows that, any vacancy caused in the
Board of Trustee shall be filled on obtaining prior consent of
any qualified person by majority vote of the remaining Board
of Trustees. The tenure of Board of Trustee is of lifetime.
 2

7 -- The present Change Report is based on meeting dated

29.06.2008 which is resolved unanimously in which vacancy
caused in Board of Trustees is filled in accordance with the
provision laid down in the trust deed. The Quorum was form
and nobody has raise objection to the resolution at the time
of Meeting. Form the clause 13 relates to “Filling Vacancies of
trustees”, it provides any vacancy caused in a Board of
Trustees shall be filled in on obtaining prior consent of any
qualified persons, by majority vote of remaining trustee.
8 -- On-going through resolution of the said meeting dated
29.06.2008 at Exh.11, the Prakashchand Puranmal Patni has
been nominated as a trustee in vacant place by the remaining
trustee unanimously.
9. -- As contemplated in Clause No.8 of the trust deed, Shri.
Prakashchand Puranmal Patni has acquired the qualification
to be appointed as trustee. Nowhere in trust deed is provided
for bio-data and written consent of the trustee to be
appointed for trustee is necessary. Clause-13 provides, “after
obtaining prior consent of any qualified person” means he is
ready to act as trustee. No one is bound to accept the
trusteeship but once it is accepted, trustee cannot renounce
except in the ways mentioned in the constitution of the trust.
Thus, it is necessary the person who is appointed as trustee
should accept as a trustee.
10. -- The respondent No.1 has submitted Death Certificate of
outgoing trustee at Exh.7 and consent letter of incoming
trustee at Exh.2, Minutes of Meeting (Resolution) at Exh.11,
Evidence Affidavit of applicant by way of examination in chief
at Exh.5. The list of documents were submitted as per Exh.10
which include Minutes of Meeting dated 29.06.2008 which
include signature of 7 members who were present in meeting
which is reflect into point No.9 of said order dated
01.11.2008, which resolved unanimously by remaining
trustee as per provision of Trust deed. The affidavit of
Reporting Trustee – Sureshchand s/o Hukumchand Kasliwal.
There was no any cross-examination to the affidavit filed as a
Examination-in-chief filed by the Reporting Trustee of the
trust which is at Exh.5, though respondent has filed objection
but he has failed to cross-examine the reporting trustee.
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11. -- Objector neither produced any document nor produced

evidence affidavit/he is unable to cross examine the reporting
trustee, in all the Change Report is uncontested
12. -- Being aggrieved and dissatisfied by the impugned Judgment
and order dated 15.01.2021, passed by the learned Joint
Charity Commissioner, Aurangabad in Appeal No.407/2018,
the petitioner prefers present petition on several grounds as
enumerated in the memo of petition.
13. -- Hence, this writ petition.

ACTS AND STATUTE:

1. CONSTITUTION OF INDIA
2. MAHARASHTRA PUBLIC TRUSTS ACT, 1950
3. CIVIL PROCEDURE CODE, 1908
POINTS TO BE URGED:
As enunciated in memo of petition
CITATIONS
WITH THE KIND PERMISSION OF THE HON’BLE COURT AT THE HEARING

PLACE: AURANGABAD Adv. G. K. Naik-Thigle

DATE: /04/2021 ADVOCATE FOR PETITIONER
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD
WRIT PETITION NO. OF 2021
DISTRICT: AURANGABAD

IN THE MATTER OF ARTICLE 226, 227 OF CONSTITUTION

OF INDIA;

AND
IN THE MATTER OF ORDER DATED 15.01.2021 PASSED BY
LEANED JOINT CHARITY COMMISSIONER AURANGABAD IN
APPEAL NO.407/2018 REVERSING ORDER DATED

01.11.2018 PASSED BY ASST. CHARITY COMMISSIONER

IN INQUIRY NO.1436/2009 TO THE EXTENT OF INCOMING
TRUSTEE

ANIL S/O CHINTAMAN MEHATRE,

AGE 51 YEARS, OCCU: PRESS REPORTER,
R/O PACHOD, TQ. PAITHAN,
DIST. AURANGABAD … PETITIONER
(ORG. INTERVENER/RESPONDENT)
VERSUS
1] SURESHCHAND S/O HUKUMCHAND KASLIWAL,
AGE 70 YEARS, OCCU: BUSINESS,
R/O MITRA NAGAR, BEHIND AKASHWANI,
AURANGABAD, DIST. AURANGABAD
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2] PARASKUMAR S/O BALCHAND THOLE,

AGE 65 YEARS, OCCU: BUSINESS,
R/O NILAM BUILDING, SHAHGUNJ,
AURANGABAD, DIST. AURANGABAD
3] PRAKASHCHAND S/O PURANMAL PATNI,
AGE 73 YEARS, OCCU: BUSINESS,
R/O VYANKATESH NAGAR, JALNA ROAD,
AURANGABAD, DIST. AURANGABAD … RESPONDENTS
(R-1 ORG. APPELLANT)
(R-2 ORG. RESPONDENT)
(R-3 ORG. INTERVENER)

TO,
THE HON’BLE CHIEF JUSTICE AND
OTHER HON’BLE JUDGES OF THE
HIGH COURT OF JUDICATURE OF
BOMBAY, BENCH AT AURANGABAD
HUMBLE PETITION OF THE
PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH:

1. The petitioner is citizen of India and is bestowed with constitutional

rights.

2. The petitioner states and submits that, since the learned authorities

passing the impugned orders are situated within the territorial

jurisdictional limits of the Hon’ble High Court, the present petition is

filed challenging the impugned orders.

3. The petitioner states and submits that, the present petitioner is

original intervener in the appeal proceedings bearing No.407/2018.

The petitioner is an interested person in view of provisions of Sec.2

(10) (d) of Maharashtra Public Trusts Act, 1950.

4. The petitioner states and submits that, the intervention application

came to be allowed in view of order dated 28.08.2019 passed by

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learned Joint Charity Commissioner Aurangabad and as such the

petitioner participated in the appeal proceedings as respondent.

Hereto marked and annexed as EXHIBIT-A is the copy of common

order dated 28.08.2019 passed in Appeal No.407/2018. So also,

respondent No.2 i.e. Paraskumar Balchand Thole and Prakashchand

Puranmal Patni are also respondents.

5. The petitioner states and submits that, the present proceedings are

arising out of the Change Report in respect of change in the

administration of “Shri. Chintamani Parasnath Digambar Jain

Atishaya Kshetra Kachner”.

6. The petitioner states and submits that, “Shri. Chintamani Parasnath

Digambar Jain Atishaya Kshetra Kachner” Trust Tq. Dist.

Aurangabad bearing PTR No.A-3054 (A) is a Public Trust

hereinafter referred as “said trust”. The object of trust is to perform

religious benevolent and charitable acts according to the tenets of

the Jain Religion. The Trust has its Rules and Regulations for

carrying administration and day to day affairs of the said trust as

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well as provision in relation to filling up vacant post of Board of

Trustee.

7. The petitioner states and submits that, the respondent No.1 has

filed the Change Report is in respect of deletion of name of trustee

Shri. Tansukhlalji Ganeshlal Thole (deceased) from the record of

trust on the ground of cause of death, therefore to delete the name

of said trustee from the Board of Trustee of the Trust.

8. The petitioner states and submits that, the Change Report filed

further to induct the name of Shri. Prakashchand Puranmal Patni

on vacant place in the Board of Trustees as per provisions of Trust

deed. As per Rule-10 of Trust Deed/Rules and Regulation of the

Trust the Trustee shall be in office and shall hold power for

lifetime. Board of Trustee shall not more than 11 and less than 7.

9. The petitioner states and submits that, the Mode of succession of

the trusteeship is at Rule 13 of Rules and Regulation of Trust

shows that, any vacancy caused in the Board of Trustee shall be

filled on obtaining prior consent of any qualified person by majority

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vote of the remaining Board of Trustees. The tenure of Board of

Trustee is of lifetime.

10. The petitioner states and submits that, the present Change Report

is based on meeting dated 29.06.2008 which is resolved

unanimously in which the vacancy caused in Board of Trustees is

filled in accordance with the provision laid down in the trust deed.

The Quorum was form and nobody has raise objection to the

resolution at the time of Meeting. Form the clause 13 relates to

“Filling Vacancies of trustees”, it provides any vacancy caused in a

Board of Trustees shall be filled in on obtaining prior consent of any

qualified persons, by majority vote of remaining trustee.

11. The petitioner states and submits that, on-going through the

resolution of the said meeting dated 29.06.2008 at Exh.11, the

Prakashchand Puranmal Patni has been nominated as a trustee in

vacant place by the remaining trustee unanimously.

12. The petitioner states and submits that, as contemplated in Clause

No.8 of the trust deed, Shri. Prakashchand Puranmal Patni has

acquired the qualification to be appointed as trustee. Nowhere in

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trust deed is provided for bio-data and written consent of the

trustee to be appointed for trustee is necessary. Clause-13

provides, “after obtaining prior consent of any qualified person”

means he is ready to act as trustee. No one is bound to accept the

trusteeship but once it is accepted, trustee cannot renounce except

in the ways mentioned in the constitution of the trust. Thus, it is

necessary the person who is appointed as trustee should accept as

a trustee.

13. The petitioner states and submits that, the respondent No.1 has

submitted Death Certificate of outgoing trustee at Exh.7 and

consent letter of incoming trustee at Exh.2, Minutes of Meeting

(Resolution) at Exh.11, Evidence Affidavit of applicant by way of

examination in chief at Exh.5. The list of documents were

submitted as per Exh.10 which include Minutes of Meeting dated

29.06.2008 which include signature of 7 members who were

present in meeting which is reflect into point No.9 of said order

dated 01.11.2008, which resolved unanimously by remaining

trustee as per provision of Trust deed. The affidavit of Reporting

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Trustee – Sureshchand s/o Hukumchand Kasliwal. There was no

any cross-examination to the affidavit filed as a Examination-in-

chief filed by the Reporting Trustee of the trust which is at Exh.5,

though the respondent has filed objection but he has failed to

cross-examine the reporting trustee.

14. The petitioner states and submits that, objector neither produced

any document nor produced evidence affidavit/he is unable to cross

examine the reporting trustee, in all the Change Report is

uncontested. Hereto marked and annexed as EXHIBIT-B is the

copy of Judgment & order dated 15.01.2021 passed by the learned

Joint Charity Commissioner Aurangabad in Appeal No.407/2018.

Hereto marked and annexed as EXHIBIT-C is the copy of Appeal

Memo in Appeal No.407/2018. Hereto marked and annexed as

EXHIBIT-D is the copy of Judgment and order passed by Asst.

Charity Commissioner Aurangabad. Hereto marked and annexed as

EXHIBIT-E is the copy of Constitution of the Trust.

15. Being aggrieved and dissatisfied by the Judgment and Order dated

15.01.2021, passed by the learned Joint Charity Commissioner,

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Aurangabad in Appeal No.407/2018, the petitioner prefers present

petition on the following amongst other several grounds, which are

in the alternative and without prejudice to each other.

GROUNDS

I] It may kindly be appreciated that, the impugned Judgment and

order passed by the learned Joint Charity Commissioner is against

the principles of justice, equity and good conscience and against

the facts and law on record.

II] It may kindly be appreciated that, the impugned Judgment and

order passed by the learned lower court is against principles of

natural justice.

III] It may kindly be appreciated that, the learned court erred in

passing the impugned Judgment and order without giving any

sound reasons. The Judgment and order passed without giving any

reasons and hence the same deserves to be set-aside.

IV] It may kindly be appreciated that, the learned lower court is wrong

in holding that compliance was not made as per Clause-14 (b): is

related to Proceeding of Trustee: 14 (b) A prior notice in writing at

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least 07 days duration, containing therein the date, time and the

place of meeting and general business to be transacted thereat

shall be given to all the trustees for each meeting. Accidental

omission to give such notice or non-receipt thereof for any reason

whatsoever shall not invalidates the proceeding of the meeting.

Accordingly, trustees are acted upon. Therefore, the Judgment and

order passed in appeal is without application of mind to the

documents submitted on record. Hence, the Judgment and order

passed in appeal is illegal.

V] It may kindly be appreciated that, the learned Asst. Charity

Commissioner has wrongly rejected the Change Report merely on

the ground that how many number of member was present and it

was clearly mentioned in the Point No.9 of the order that there was

07 member present to meeting as per Clause No.12 Number of

trustee is not more than 11 and less than 07. Accordingly, trustees

are acted upon therefore, the order passed in appeal is totally

illegal.
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VI] It may kindly be appreciated that, the learned Asst. Charity

Commissioner has passed the Judgment and order very casually on

01.11.2008 in the present Change Report without referring to the

enquiry which he has made. The learned Asst. Charity

Commissioner miserably failed to consider that there was no any

cross-examination by objector to the affidavit filed by the reporting

trustee of the trust and hence ought to have accepted the Change

Report since the same is uncontested.

VII] It may kindly be appreciated that, the learned Asst. Charity

Commissioner ought to have considered Circular No.42 i.e.

directions. Admittedly circular is a direction from Charity

Commissioner or any subordinate officer in case the

applicant/respondent/objector failed to submit the requisite

particulars in respect of procedure should be adopted by the Asst.

Charity Commissioner in case the applicant/respondent failed to

submit the requisite particulars. In second part of the circular it is

specifically mentioned that in case of inquire pending U/Sec.22 of

MPT Act, 1950, sufficient opportunity should be given to the

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applicant/respondent to submit the requisite particulars. In case

they fail to do so then the regional officer concerned should

ordinarily on the very same day pass an order converting the said

inquiry into a suo motu enquiry and assign a fresh number to that

enquiry and see that the same is disposed off expeditiously. It is

not desirable that when the change in fact occurred, that change

should go un-enquired into and ought to have considered the

interest of trust, the Change Report is blandly rejected on the

ground that, non-compliance of Clause 14 (b) by reporting trustee.

VIII] It may kindly be appreciated that, the learned Asst. Charity

Commissioner miserably failed to consider that as per the record of

the Schedule-1, held that, the Managing Committee Members of

the said trust was 11. Therefore, the learned Asst. Charity

Commissioner ought to have held that, the submission of Change

Report in respect of filling up vacancy on Managing Committee by

remaining trustee unanimously cannot be said to be illegal.

Therefore, the reason given by the learned Asst. Charity

Commissioner that, showing Number of Member of Trust

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Committee Members on Managing Committee is wrong and

absolutely against the very record of this Hon’ble Authority.

IX] It may kindly be appreciated that, the learned Asst. Charity

Commissioner ought to have considered very provision of Rules

Regulation. Fact of the case is that, as per Rule 14 (b) of Rules and

Regulations of Trust: Proceeding of Trustee: A prior notice in

writing at least 07 days duration, containing therein the date, time

and the place of meeting and general business to be transacted

thereat shall be given to all the trustees for each meeting.

Accidental omission to give such notice or non-receipt thereof for

any reason whatsoever shall not invalidate proceeding of the

meeting. Accordingly, trustees are acted upon. Therefore, the

learned Asst. Charity Commissioner ought to have accepted the

Change Report.

X] It may kindly be appreciated that, the learned Asst. Charity

Commissioner miserably failed to consider that the very Minutes of

the Meeting are produced on record of the Meeting are produced

on record of the meeting dated 29.06.2008 in which vacancy filled

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by remaining trustee unanimously. Hence, the learned Asst. Charity

Commissioner committed error in rejecting the Change Report.

XI] It may kindly be appreciated that, the learned Asst. Charity

Commissioner also failed to consider the very Rules and

Regulations of the Trust.

XII] That, the Lower Court has committed a gross error in not

appreciating the scope and ambit of an enquiry under Section 22 of

the Bombay Public Trust Act, which is confined to the occurrence or

otherwise of the change which is reported.

XIII] The learned Lower Court has committed a gross error in ignoring

non-compliance of the factors, which are mandatory in nature.

XIV] The learned Lower Courts did not appreciate the pleadings and

evidence on record in proper perspective which has resulted into

miscarriage of justice.

XV] That, the Lower Court erred in not properly appreciating the

evidence, oral as well as documentary on record and thereby

occasioned failure of justice.

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16. The petitioner craves leave of this Hon’ble Court to amend, annul,

add, modify or rectify any of the submissions made hereinbefore.

17. The petitioner has not received the notice of caveat from the

respondents.

18. The petitioner undertakes to supply the translation of vernacular

documents into English as and when required.

19. The petitioner has not filed any other petition or proceedings before

this Hon’ble Court or the Hon’ble Supreme Court of India in respect

of the present subject matter except the present appeal.

20. IT IS, THEREFORE, PRAYED THAT:

THE HON’BLE HIGH COURT MAY GRACIOUSLY BE PLEASED;

(A) Issue rule “nisi”.

(B) Rule may be made absolute and by issue of writ, or order or

direction in the like nature, to quash and set aside the

impugned order dated 15.01.2021 passed by the learned

Joint Charity Commissioner Aurangabad in Appeal

No.407/2018.
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(C) Pending hearing and final disposal of this Writ Petition, the

implementation, execution, operation, existence and effect

of impugned order dated 15.01.2021 passed by the learned

Joint Charity Commissioner Aurangabad in Appeal

No.407/2018 may kindly be stayed.

(D) Ad interim relief in terms of prayer clause (C) may kindly be

granted;

(E) Any other appropriate orders deem fit may kindly be passed

in favour of the petitioners as the facts and circumstances of

the case may warrant.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE PETITIONER AS IN DUTY

BOUND SHALL EVER PRAY.

PLACE: AURANGABAD Adv. G. K. Naik-Thigle

DATE: /04/2021 ADVOCATE FOR PETITIONER
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD
WRIT PETITION NO. OF 2021
DISTRICT: AURANGABAD

Anil S/o Chintaman Mehatre … PETITIONER

VERSUS
Sureshchand S/o Hukumchand Kasliwal
and others … RESPONDENTS

INDEX

SR. PARTICULARS EXH. PAGE NOS.

NO. NO.
1. MEMO OF WRIT PETITION -- To
2. LIST OF DOCUMENTS -- To
3. COPY OF COMMON ORDER BELOW EXH.10 “A” To
IN APPEAL NO.407/2018
4. COPY OF JUDGMENT AND ORDER DATED “B” To
15.01.2021, PASSED BY THE LEARNED

JOINT CHARITY COMMISSIONER

AURANGABAD IN APPEAL NO.407/2018
5. COPY OF MEMO OF APPEAL NO.407/2018 “C” To
6. COPY OF JUDGMENT AND ORDER PASSED BY “D” To
THE LEARNED ASST. CHARITY
COMMISSIONER, AURANGABAD
7. COPY OF THE CONSTITUTION OF THE “E” To
TRUST.

LAST PAGE:

PLACE: AURANGABAD Adv. G. K. Naik-Thigle

DATE: /04/2021 ADVOCATE FOR PETITIONER
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD
WRIT PETITION NO. OF 2021
DISTRICT: AURANGABAD

Anil S/o Chintaman Mehatre … PETITIONER

VERSUS
Sureshchand S/o Hukumchand Kasliwal
and others … RESPONDENTS
LIST OF DOCUMENTS

SR. PARTICULARS EXH. PAGE NOS.

NO. NO.
1. COPY OF COMMON ORDER DATED “A” To
28.08.2019 PASSED IN APPEAL
NO.407/2018
2. COPY OF JUDGMENT AND ORDER DATED “B” To
15.01.2021, PASSED BY THE LEARNED

JOINT CHARITY COMMISSIONER

AURANGABAD IN APPEAL NO.407/2018
3. COPY OF MEMO OF APPEAL NO.407/2018 “C” To
4. COPY OF JUDGMENT AND ORDER PASSED BY “D” To
THE LEARNED ASST. CHARITY
COMMISSIONER, AURANGABAD
5. COPY OF THE CONSTITUTION OF THE “E” To
TRUST.

LAST PAGE:

PLACE: AURANGABAD Adv. G. K. Naik-Thigle

DATE: /04/2021 ADVOCATE FOR PETITIONER