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Judgment
Heard. Rule. Rule is made returnable forthwith. Heard the petition with the consent of the learned counsel appearing for the respective parties at the stage of admission.
The present petition takes an exception to the order dated 29.11.2018 passed by the learned Charity Commissioner, Nagpur, whereby the application filed by the petitioner under Section 41D of Maharashtra Public Trusts Act, 1950 (“the Act” for short) came to be rejected on the ground that the petitioner is not interested person to file such application seeking enquiry under Section 41D of the Act.
The learned counsel for the petitioner submits that the petitioners are donors who used to donate funds for the cause of Trust which is registered under the Act. The object of Trust is to support and facilitate the business of wholesale flowers growers. Being donors of the Trust when the petitioners found irregularities in the functioning of the Trust, they filed an application for initiating enquiry under Section 41D of the Act. He would submit that being donors, certainly the petitioners are persons having an interest in the Trust and therefore, can seek an inquiry and action under Section 41D of the Act. But, the learned Joint Charity Commissioner without going into the provisions of Section 41D of the Act rejected the application. Therefore, he prayed that the writ petition be allowed.
Mr. A.P.Thakre, learned counsel for the respondent nos.1, 3 and 4 vehemently opposed the prayers of the petitioners and invited my attention to Section 2(10) of the Act and pointed out that as the petitioners were not trustees or members of the Trust. More particularly, as the society is registered under the Societies Registration Act, 1860 an application under Section 41D of the Act is maintainable only if it is filed by the members. Therefore, on this count, the learned Joint Charity Commissioner had not committed any error by rejecting the application of the petitioners and supports the order.
I have gone through the order passed by the Joint Charity Commissioner. The petitioners had submitted an application along with receipts whereby it clearly denotes that the petitioners are donors of the Trust therefore, they come under the category of persons who can file an application under Section 41D of the Act seeking enquiry and action. To solve this controversy, this Court refers Section 41D of the Act which reads as under:
“41D. Suspension, removal and dismissal of trustees.— (1)
The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 41B or suo motu may suspend, remove or dismiss any trustee of a public trust, if he,—
(a)makes persistent default in the submission of accounts report or return;
(b)wilfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or rules made thereunder by the State Government;
(c)continuously neglects his duty or commits any mal-feasance or misfeasance, or breach of trust in respect of the trust;
(d)misappropriates or deals improperly with the properties of the trust of which he is a trustee; or
(e)accepts any position in relation to the trust which is inconsistent with his position as a trustee;
(f)if convicted of an offence involving moral turpitude.
(2)(a) When the Charity Commissioner proposes to take action under sub-section (1), the Charity Commissioner may issue notice to the trustee or the person against whom the action is proposed to be taken only when he finds that there is prima facie material to proceed against the said person.
(b)The trustee or person to whom a notice under clause (a) is issued, shall submit his reply thereto within fifteen days from the date of receipt of notice.
(c)If the person fails to give reply to the notice issued under clause (a) or the Charity Commissioner finds that the reply is not satisfactory, the Charity Commissioner shall frame charges against the said person within fifteen days of the filing of the reply or the default in the filing of reply, as the case may be, and give the said person an opportunity of meeting such charges and after considering the evidence adduced against him and in his favour, may pass order regarding suspension or removal or dismissal within three months from the date of framing of charges. If it is not practicable for the Charity Commissioner to issue notice, frame charges and pass final orders within stipulated time, he shall record reasons for the same.
(d)The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation, if any, and the finding on each charge with reasons therefor.
(3)Pending disposal of the charges framed against a trustee the Charity Commissioner may place the trustee under suspension.
(4)Where the Charity Commissioner has made an order suspending, removing or dismissing any trustee and such trustee is the sole trustee or where there are more than one trustee and the remaining trustee according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the function of the trust, and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust.
(5)deleted.
(6)An appeal shall lie to the Court against the order made under sub- section (1), as if such decision was a decree of a district court as a court of original jurisdiction from which an appeal lies, within sixty days from the date of the order.
(7)The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final”.
Inquiry under Section 41D of the Act, can be initiated :- firstly -on application of a Trustee, secondly - by any person interested in the trust, thirdly – on receipt of report under Section 41B and fourthly - suo motu.
Therefore, considering the submissions and documents, which are on the record, present case ought to have fallen in the second category i.e. “any person interested” in the Trust. Being donors the application of the petitioners can be considered under Section 41D of the Act, as they fall under the category of persons having interest in the Trust.
Therefore, I find substance in the arguments advanced by the learned counsel for the petitioners that the petitioners are persons having interest and they can file an application seeking an action under Section 41D of the Act. Therefore, considering the specific provision as referred above, I find that the impugned order dated 29.11.2018 cannot be sustained in the eyes of law. Hence, I pass the following order
O R D E R
Writ Petition is allowed by holding that the petitioners are persons having interest in the Trust.
Order dated 29.11.2019 passed below Exhibit-1 by the Joint Charity Commissioner, Nagpur in Application No.35/2017 is hereby quashed and set aside.
Rule is made absolute in the aforesaid terms. The petition is accordingly disposed of.