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Subodhchandra Motiramji Lahane & Others v/s Assistant Charity Commissioner & Others


    Writ Petition No. 2457 of 2018

    Decided On, 16 July 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE R.K. DESHPANDE & THE HONOURABLE MR. JUSTICE ARUN D. UPADHYE

    For the Petitioners: R.L. Khapre, Counsel. For the Respondents: R1 & R2, A.V. Palshikar, AGP, R3, A.R. Deshpande, R4 to R10, H.R. Gadhia, Counsels.



Judgment Text

Oral Order: (R.K. Deshpande, J.)

1. The challenge in this petition is to the different orders passed in different Change Reports under Section 22 of the Maharashtra Public Trusts Act as are mentioned in prayer Clause 1 of the petition.

2. The petition also challenges the order dated 15/3/2018 said to have been passed by the learned Joint Charity Commissioner in Application No.14/2016 under Section 47 of the Maharashtra Public Trusts Act.

3. The preliminary objection is that a writ petition lies before the learned Single Judge challenging the orders passed in various Change Reports whereas an appeal lies before this Court against an order under Section 47 of the said Act. It is, therefore, submitted that the present writ petition has to be heard and decided by the learned Single Judge leaving the question of maintainability of this petition challenging the order passed under Section 47 of the Act open for adjudication.

4. Shri Khapre, the learned Counsel appearing for the petitioners submits the order passed under Section 47 of the said Act on 15/3/2018 contains the directions at serial nos.3 to 6 in the operative portion of the order which are in nature of one covered by Section 41A of the Maharashtra Public Trusts Act and therefore, the writ petition has to be entertained by the Division Bench, in view of the decision of this Court in case of Vanmala Manoharrao Kamdi and others...Versus...Deputy Charity Commissioner, Nagpur and others, reported in 2012 (3) Mh.L.J. 594. He has also brought to our notice direction no.5 contained in the order dated 15/3/2018 passed under Section 22 of the said Act and submits that the said direction also pertains to the jurisdiction of the Charity Commissioner under Section 41A of the Maharashtra Public Trusts Act and on this count also the writ petition is required to be decided by the Division Bench in view of the decision, cited supra.

5. We put a specific question to Advocate Shri Khapre as to whether the directions issued in both the orders; one under Section 22 and the other under Section 47 of the said Act relating to the power of the Charity Commissioner under Section 41A of the said Act would survive, even if the orders passed under Sections 22 and 47 of the said Act are set aside by this Court. He answers saying that consequential orders under Section 41 A of the said Act would not survive and thus the basic challenge would be in this petition to the orders under Sections 22 and 47 of the Maharashtra Public Trusts Act.

6. In our view, if upon setting aside the order passed under Section 22 or 47 of the said Act the consequential directions do not survive then the matter has to be heard by the learned Single Judge, as essentially the challenge would be to the orders passed under Sections 22 and 47 of the said Act, respectively. While setting aside the orders passed under Sections 22 and 47 of the said Act, the learned Single Judge would be competent to set aside the consequential orders also which pertain to his jurisdiction under Section 41A of the said Act, as such orders would not survive.

7. In view of above, the decision by the learned Single Judge rendered on 19/10/2016 in First Appeal No.600/2016 (Shri Chandrakant s/o Jaydevshankar Thakar and others...Versus...Smt. Alka Sahani and others) holding that the matter is required to be placed before the Division Bench, is overruled and it is held that where the sustainability of the directions issued under Section 41A of the Maharashtra Public Trusts Act depends upon setting aside or maintaining the orders passed under any other provisions of the said Act, the matter will have to be tried by the learned Single Judge. The learned Single Judge has relied upon the decision of the Division Bench of this Court in Vanmala Manoharrao Kamdi's case. It was a case challenging order passed on the application under Section 41A of the said Act. We, therefore, clarify that the law laid down by this Court in the case of Vanmala Manoharrao Kamdi, cited supra, would apply to the cases where the order under Section 41A of the said Act is substantive in nature and its sustainability does not depend upon setting aside or maintaining the orders passed under any other provisions of the sai

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d Act. 8. In view of the above, the matter needs to be placed before the learned Single Judge for decision. We keep the objections regarding maintainability of the appeal under Section 47 (5) of said Act before the Single Judge and we also keep the question to carry out any amendment as proposed by Advocate Shri Khapre open to be adjudicated by the learned Single Judge. Office is directed to place the matter accordingly before the appropriate Bench.
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