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2017 SCC OnLine Bom 2559 : (2017) 4 AIR Bom R 769 : (2017) 5
Bom CR 187

In the High Court of Bombay

Civil Appellate Jurisdiction
(BEFORE M.S. SONAK, J.)

First Appeal No. 1327 of 2015

With
Civil Application No. 4159 of 2015
With
Civil Application No. 2848 of 2016
In
First Appeal No. 1327 of 2015
The Bombay Diocesan Trust Association Pvt. Ltd. &
Ors. .…. Appellants
Versus
Rev. Dr. P.B. Amolik & Ors. .…. Respondents
Mr. A.A. Kumbhakoni - Senior Advocate with Mr. Shardul Singh i/b.
Ivor Peter D'Cruz for Appellant.
Mr. G.S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 3 and 4.
Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent Nos.
4, 7, 9 and 10.
Mr. Salim M. Sayeed for Respondent No. 12.
Mr. Yogesh Dabke - AGP for State.
With
First Appeal No. 1328 of 2015
With
Civil Application No. 4162 of 2015
With
Civil Application No. 2964 of 2016
In
First Appeal No. 1328 of 2015
The Bombay Diocesan Trust Association Pvt. Ltd. &
Ors. .…. Appellants
Versus
Lt. Col. A.M. Gnanakan & Ors. .…. Respondents
Mr. A.A. Kumbhakoni - Senior Advocate with Mr. Shardul Singh i/b.
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Ivor Peter D'Cruz for Appellant.

Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent Nos. 1
to 4.
Mr. G.S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 5 and 6.
Mr. Salim M. Sayeed for Respondent No. 12.
Mr. Yogesh Dabke - AGP for State.
With
First Appeal No. 1244 of 2015
With
Civil Application No. 4022 of 2015
And
Civil Application No. 2505 of 2016
In
First Appeal No. 1244 of 2015
Nitin J. Salve .…. Appellant
Versus
James Baker & Ors. .…. Respondents
Mrs. P.A. Tatake for Appellant.
Mr. G.S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 3 and 4.
Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent Nos.
5, 7, 9 and 11.
Mr. Salim M. Sayeed for Respondent No. 12.
Mr. Yogesh Dabke - AGP for State.
With
First Appeal No. 1250 of 2015
With
Civil Application No. 4056 of 2015
In
First Appeal No. 1250 of 2015
Rev. Dr. P.B. Amolik & Anr. .…. Appellants
Versus
James Baker & Ors. .…. Respondents
Mrs. V.V. Thorat i/b. Shah Legal for Appellants.
Mr. G.S. Godbole with Mehul Shah and Swapnali Desai for
Respondent Nos. 1 and 2.
Mr. Vishvajit Sawant i/b. Daljeet Singh Bhatia for Respondent Nos.
4, 7, 8 and 9.
Mr. Salim M. Sayeed for Respondent No. 10.
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Mr. Yogesh Dabke - AGP for State.

With
Writ Petition No. 12089 of 2015
James Baker & Anr. .…. Appellants
Versus
Lt. Col. A.M. Gnanakan & Ors. .…. Respondents
Mr. G.S. Godbole with Mehul Shah and Swapnali Desai for Appellant.
Mr. Shardul Singh i/b. Ivor Peter D'Cruz for Respondent No. 1.
Mr. Salim M. Sayeed for Respondent No. 10.
Mr. Yogesh Dabke - AGP for State.
Mr. S.V. Pimple - Assistant Charity Commissioner present in Court.
Mr. Sameer Vaidya with Robin Thomas for Intervenor
Mr. Sachin Bhujbal - Inspector from Charity Commissioner's Office
present in Court.
First Appeal No. 1327 of 2015; Civil Application No. 4159 of 2015;
Civil Application No. 2848 of 2016; First Appeal No. 1327 of 2015;
Civil Application No. 4162 of 2015; Civil Application No. 2964 of
2016; First Appeal No. 1328 of 2015; First Appeal No. 1244 of
2015; Civil Application No. 4022 of 2015; Civil Application No.
2505 of 2016; First Appeal No. 1244 of 2015; First Appeal No.
1250 of 2015; Civil Application No. 4056 of 2015; and Writ Petition
No. 12089 of 2015
Decided on June 14, 2017

Trusts and Trustees — Maharashtra Public Trusts Act, 1950 — S. 41-D —

Power of Joint Charity Commissioner to dismiss a trustee of Trust ‘forever’
— Charges of permitting frittering away trust property without authority of
law and for a pittance proved — No provision in Act for dismissing a trusty
for ever — Under circumstance an Ordinance was promulgated and sub-
sections 7 and 8 introduced in S. 41-D — However at time when impugned
orders were made ordinance had already lapsed and was no longer
operative — Bill could not be produced in Legislative Assembly — Hence
dismissal upheld however such dismissal to extent it purports to debar from
contesting for position of trustee post determination of his tenure, set aside
(Paras 57, 58, 61, 62 and 63)

Prabhakar S. Chaudhari v. Laxman B. Mali, Second Appeal No. 700 of 2008 decided
on 1-4-2016 (Aurangabad Bench), relied on

Shyam Lal v. State of U.P., AIR 1954 SC 369, referred to

The Judgment of the Court was delivered by

M.S. SONAK, J.:— Heard learned counsel for the parties. At their
request and with their consent these matters are disposed of by
common judgment and order.
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2. Even otherwise, the challenge in each of the appeals is to the

judgment and order dated 30 October 2015 made by the City Civil
Court, Mumbai in appeals under section 41D(5) of the Maharashtra
Public Trusts Act, 1950 (MPT Act), which is a common order disposing
of the two appeals which were numbered as Charity Application Nos. 1
and 2 of 2013. Writ Petition No. 12089 of 2015 is instituted by James
Baker and another, who were respondents in the appeals before the
Civil Civil Court, Mumbai and who claimed to be aggrieved by certain
observations in the impugned judgment and order dated 30 October
2015, even though, they have no grievance as regards the final
outcome, i.e., dismissal of the two appeals by the Civil Civil Court,
Mumbai. In such circumstances, it is only appropriate that the appeals
and the writ petition are considered and disposed of by common
judgment and order.
3. First Appeal Nos. 1327 of 2015 and 1328 of 2015 have been
instituted by the following appellants:
1] The Bombay Diocesan Trust Association Pvt. Ltd.;
2] Vipul Rawade
3] Kishore Pendurkar
4] Sunil Rawade
4. The two appeals basically challenge the impugned judgment and
order dated 30 October 2015 made by the City Civil Court, Mumbai on
the grounds that the impugned order terminates the tenure of
appellant Nos. 2, 3 and 4, even though, the said appellants were not
impleaded as parties in original applications under section 41D of the
MPT Act, seeking inter alia for removal of some of the trustees of the
Bombay Diocesan Trust Association Pvt. Ltd. (Trust). These appellants
point out that they had in fact, vide applications dated 12 October
2012, applied to the Joint Charity Commissioner taking up the Original
Application No. 28 of 2009 under section 41D of the MPT Act, for leave
to intervene or for their impleadment, expressing apprehension that
any order in the said proceedings might affect them. They point out
that by order dated 16 October 2012, the Joint Charity Commissioner
rejected the application for impleadment/intervention by observing that
since there are no allegations against appellant Nos. 2 to 4, there was
no necessity of permitting their intervention or impleadment. They
point out that in the order dated 16 October 2012, the Joint Charity
Commissioner had also observed that there was no question of making
any orders against persons who were not parties to the proceedings.
5. By judgment and order dated 17 December 2012, however, the
Charity Commissioner partly allowed Application No. 28 of 2009 under
section 41D of the MPT Act and removed almost ten trustees, who were
styled as opponent Nos. 1 to 10 in Application No. 28 of 2009 before
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the Joint Charity Commissioner. The Joint Charity Commissioner then

proceeded to appoint an Administrator to manage the affairs of the
Trust, thereby at least indirectly, terminating the tenure of appellant
Nos. 2, 3 and 4, against whom there were neither any allegation as
contemplated by section 41D of the MPT Act and nor were they
impleaded as parties to the proceedings under section 41D of the MPT
Act as aforesaid.
6. The trustees, who were actually ordered to be removed by the
Joint Charity Commissioner vide judgment and order dated 17
December 2012 appealed to the City Civil Court, Mumbai under section
72(1) of the MPT Act, which appeals came to be numbered as Charity
Application Nos. 1 and 2 of 2013.
7. The appellants in First Appeal Nos. 1327 and 1328 of 2015 took
out Chamber Summons Nos. 734 and 735 of 2014 before the City Civil
Court, Mumbai in pending appeals, seeking their impleadment, inter
alia, on the ground that even they were affected by the impugned
judgment and order dated 17 December 2012 made by the Joint
Charity Commissioner. The chamber summons were allowed by orders
dated 1 July 2014 and the appellants, were impleaded as parties in the
pending appeals.
8. The City Civil Court Mumbai vide judgment and order dated 27
March 2015, allowed Charity Application Nos. 1 and 2 of 2013, set aside
the Joint Charity Commissioner's order dated 17 December 2012 and
remanded the matter to the Joint Charity Commissioner for fresh
consideration of Application No. 28 of 2009 under section 41D of the
MPT Act after impleadment of all parties and after afford of
opportunities to all parties to tender evidence/additional evidence.
9. The original applicants in Application No. 28 of 2009, i.e., James
Baker and another, instituted a second appeal under section 41D(6) of
the MPT Act questioning the judgment and order dated 27 March 2015
made by the City Civil Court, Mumbai. By the judgement and order
dated dated 22 June 2015, the second appeals were allowed, the
common judgment and order dated 27 March 2015 made by the City
Civil Court, Mumbai in Charity Application Nos. 1 and 2 of 2013 was set
aside and the matter was remanded to the City Civil Court, Mumbai for
disposal of the Charity Application Nos. 1 and 2 of 2013, in accordance
with law and on their own merits.
10. Pursuant to remand as aforesaid, the City Civil Court, Mumbai
vide impugned judgement and order dated 30 October 2015, has
dismissed the Charity Application Nos. 1 and 2 of 2013, thereby
confirming the judgment and order dated 17 December 2012 made by
the Joint Charity Commissioner, removing the ten trustees of the Trust
in exercise of powers conferred by section 41D of the MPT Act and
appointing an Administrator to manage affairs of the Trust.
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11. First Appeal No. 1244 of 2015 and First Appeal No. 1250 of 2015
have been instituted by the trustees, who were actually ordered to be
removed vide judgment and order dated 17 December 2012 made by
the Joint Charity Commissioner under section 41D of the MPT Act. As
noted earlier, the judgment and order dated 17 December 2012, stands
confirmed by the impugned judgment and order dated 30 October 2015
made by the City Civil Court, Mumbai. In effect therefore, all the four
appeals, question the impugned judgment and order dated 30 October
2015 made by the City Civil Court, Mumbai, affirming the judgement
and order dated 17 December 2012 made by the Joint Charity
Commissioner under section 41D of the MPT Act.
12. Mr. Kumbhakoni, learned senior advocate for the appellants in
First Appeal No. 1327 of 2015 and 1328 of 2015, has submitted that
the judgments and orders dated 17 December 2012 and 30 October
2015, in effect, curtail the tenure of appellant Nos. 2, 3 and 4 in the
said appeals as trustees of the Trust. He submits that as against the
said appellants there were neither any allegations in Original
Application No. 28 of 2009 instituted before the Joint Charity
Commissioner nor were said appellants impleaded as parties to the said
Application No. 28 of 2009. The attempt on the part of the appellants to
seek impleadment was turned down by the Joint Charity Commissioner
by specifically observing that there were no allegations against the said
appellants and accordingly, there was no question of making any
adverse orders as against such appellants. In such circumstances, Mr.
Kumbhakoni submits that the impugned orders, to the extent, they
curtail tenure of appellant Nos. 2, 3 and 4 and thereby, indirectly,
remove the said appellants as trustees of the said Trust, violate the
principles of natural justice and fair play and therefore, are required to
be set aside qua the said appellants.
13. Mr. G.S. Godbole, learned counsel for James Baker and another,
the original applicants in Application No. 28 of 2009 under section 41D
of MPT Act, submits that appellant Nos. 2, 3 and 4 were admittedly
impleaded as parties before the appellate court, i.e., the City Civil
Court, Mumbai in Charity Application Nos. 1 and 2 of 2013. He submits
that consequent upon the removal of most of the trustees, i.e., ten
trustees vide judgment and order dated 17 December 2012, the Joint
Charity Commissioner, was acted well within his powers to appoint an
Administrator to govern the affairs of the Trust. Accordingly, Mr.
Godbole submits that this is not a case of removal of appellant Nos. 2,
3 and 4 as trustees of the said Trust, but rather, this is a case where
the Joint Charity Commissioner, in the exercise of powers vested him in
under section section 41D of MPT Act has rightly appointed an
Administrator to govern the affairs of the Trust, which, affairs, could
obviously, have not been governed only by appellant Nos. 2, 3 and 4,
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after, all the trustees, other than them, stood removed vide judgment
and order dated 17 December 2012 made by the Joint Charity
Commissioner. For these reasons, Mr. Godbole submits that there is
absolutely no infirmity in the orders dated 17 December 2012 and 30
October 2015 and the two first appeals, i.e., First Appeal No. 1327 of
2015 and 1328 of 2015 may be dismissed.
14. In the alternate, Mr. Godbole submits that the tenure of
appellant Nos. 2, 3 and 4 has long ago ended. Accordingly, he submits
that First Appeal No. 1327 of 2015 and First Appeal No. 1328 of 2015
have been rendered infructuous and may be dismissed on the said
ground as well.
15. In this case, appellant Nos. 2, 3 and 4 should have been
permitted to intervene in Application No. 28 of 2009 instituted by
James Baker and another, i.e., before the Joint Charity Commissioner at
least at the stage when the Joint Charity Commissioner formed a
tentative opinion that almost all the trustees of the Trust, except
appellant Nos. 2, 3 and 4 deserved to be removed as trustees under
section 41D of the MPT Act and that appointment of Administrator
might be necessary to govern the affairs of the Trust. As noted earlier,
appellant Nos. 2, 3 and 4 had in fact applied for
intervention/impleadment. Such application was however, rejected by
the Joint Charity Commissioner on 16 October 2012 by making the
following observations:
“there are no allegation against the party proposed to be added as
respondent. No orders will be passed against the applicant as he is
not party to the proceeding and unless opportunity of hearing is
granted to him. Hence, at this stage, Mr. Vipul Rawde cannot be
added as party Opponent No. 11”.
16. Mr. Kumbhakoni, learned senior advocate for the appellants in
First Appeal Nos. 1327 of 2015 and 1327 of 2015, in the
circumstances, is right in contending that there has been violation of
principles of natural justice, at least insofar as appellant Nos. 2, 3 and 4
are concerned. Their tenure was curtailed on account of appointment of
Administrator vide order dated 17 December 2012 in Application No. 28
of 2009 made by the Joint Charity Commissioner in exercise of powers
conferred upon him under section 41D of the MPT Act. Prior to such
curtailment, however, appellant Nos. 2 to 4 were deprived opportunity
of hearing, even though, they had specifically applied for such
opportunity by taking out applications for intervention/impleadment.
17. However, it appears that by virtue of certain interim orders made
by this court, appellant Nos. 2, 3 and 4 secured at least some limited
protection. Further, there is no dispute whatsoever that the
term/tenure of appellant Nos. 2, 3 and 4 as trustees has long ended.
The impugned orders neither visit appellant Nos. 2, 3 and 4 with any
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stigma nor do the impugned orders impose any embargo upon

appellant Nos. 2, 3 and 4 to re-contest elections and seek yet another
tenure, in terms of the trust deed and law. Taking into consideration
such circumstances, no useful purpose will be served by interfering
with the impugned judgments and orders, at this stage, at the behest
of the appellants in First Appeal No. 1327 of 2015 and 1328 of 2015.
However, the two first appeals, i.e., First Appeal No. 1327 of 2015 and
First Appeal No. 1328 of 2015 can be disposed of by clarifying that
nothing in the impugned orders cast or shall be construed as casting
any stigma upon appellant Nos. 2, 3 and 4 or rendering them ineligible
to contest for the position of trustees of the said Trust, at the
election/election process. First Appeal No. 1327 of 2015 and 1328 of
2015 are disposed of in the aforesaid terms.
18. Mr. Godbole, learned counsel for Mr. James Baker and another,
the applicants in Application No. 28 of 2009 before the Joint Charity
Commissioner urged that First Appeal No. 1244 of 2015 and 1250 of
2015 may also be disposed of as infructuous, since the tenure of the
appellants in the appeals has also ended, and even the period for which
the appellants in the said first appeals were directed to be suspended,
has since expired. He submits that the charges against the appellants
in First Appeal No. 1250 of 2015 are quite grave and the same have
been held as proved, concurrently by the Joint Charity Commissioner as
well as the City Civil Court, Mumbai. On this basis, Mr. Godbole submits
that First Appeal No. 1244 of 2015 and 1250 of 2015 deserve dismissal
with exemplary costs.
19. Ms. Prachi Tatake and Mrs. V.V. Thorat, learned counsel for the
appellants in First Appeal Nos. 1244 of 2015 and 1250 of 2015, dispute
the contentions of Mr. Godbole and submit that the two first appeals
cannot be regarded as infructuous, at least for the following two
reasons:
a] The impugned orders cast stigma upon the appellants, which
needs to be wiped out in these appeals:
b] In terms of the impugned orders, Rev. Dr. P.B. Amolik, the
appellant in First Appeal No. 1250 of 2015, has been permanently
removed as trustee. This means that Rev. Dr. P.B. Amolik has
been debarred from contesting to the position of trusteeship, for
life. Mrs. V.V. Thorat submits that apart from such direction being
contrary to law, unless, such direction is set aside in such appeal,
Rev. Dr. P.B. Amolik will secure no real redressal in the matter.
20. There is merit in the contention of Ms. Tatake and Mrs. Thorat,
learned counsel for the appellants in First Appeal Nos. 1244 of 2015
and 1250 of 2015. The impugned orders, undoubtedly, cast a stigma
upon the appellants in the said appeals. The impugned order also
purports to debar the appellants in First Appeal No. 1250 of 2015 from
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holding the position of trustee of the Trust forever. In such

circumstances, the first appeals cannot be disposed of as infructuous,
even though, the tenure of the trustees has ended and fresh elections
will have to be held in the matter.
21. Ms. Tatake and Mrs. V.V. Thorat have attacked the findings of
fact recorded by the Joint Charity Commissioner in his judgment and
order dated 17 December 2012 and by the City Civil Court, Mumbai in
its judgment and order dated 30 October 2015. They submit that there
is no evidence to link the appellants with the charges levelled against
them and in any case, the charges, were by no means sufficient for
initiation of action under section 41D of the MPT Act. In such
circumstances, they submit that the impugned judgments and orders
made by the Joint Charity Commissioner and the City Civil Court at
Mumbai are liable to be set aside.
22. On the other hand, Mr. Godbole, learned counsel for the
respondents, who had instituted Application No. 28 of 2009 seeking
action under section 41D of the MPT Act submits that there is
overwhelming evidence on record, which establishes the charges
leveled against the appellants and therefore, there is no case made out
to interfere with the impugned judgments and orders.
23. Mrs. Thorat, learned counsel for the appellants in First Appeal
No. 1250 of 2015, i.e., Rev. Dr. P.B. Amolik, in the alternate submits
that the removal of the appellant as trustee for life, is clearly a direction
which is in excess of jurisdiction vested in the Joint Charity
Commissioner. She submits that there is no provision under the MPT
Act, which entitles the Joint Charity Commissioner to make an order of
such nature. She submits that the Joint Charity Commissioner, in
making such an order, has virtually, re - written the provisions of
section 41D of the MPT Act, which is clearly impermissible. She
therefore, submits that even if the charges leveled against Rev. Dr. P.B.
Amolik, are to be accepted as proved, there is absolutely no authority
or justification to debar Rev. Dr. P.B. Amolik, to be the trustee of the
Trust for life. She points out that Rev. Dr. RB. Amolik, is 84 years of
age and in the evening of his life, there is no justification that he
suffers such a harsh direction, particularly, when such direction was
never justified either on facts or in law.
24. Mr. Godbole, learned counsel for the respondents, who had
originally instituted Application No. 28 of 2009 before the Joint Charity
Commissioner submits that the impugned order disqualifying Rev. Dr.
P.B. Arnolik, to hold the trusteeship for life is very much justified, both
on facts as well as in law. He submits that if Rev. Dr. RB. Arnolik, is
permitted to contest the election, despite, such serious charges having
been held as proved against him, the very governance of the Trust will
be serious jeopardy. He submits that the provision contained in section
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41D of the MPT Act is required to be interpreted in light of the

statement of objects and reasons as also other provisions of the MPT
Act. Thus construed, Mr. Godbole submits that there is no legal
infirmity whatsoever in the impugned judgment and order and the
direction made therein.
25. Based upon the pleadings as well as the submissions made by
learned counsel for the parties, the following two main points arise for
determination in First Appeal No. 1244 of 2015 and 1250 of 2015.
i] Whether the charges leveled against the appellants were sufficient
and proved so as to entitle the Joint Charity Commissioner to
suspend/remove the appellants as trustees of the Trust in
exercise of powers conferred upon him under section 41D of the
MPT Act?
ii] Whether the Joint Charity Commissioner is empowered under
section 41D of the MPT Act to dismiss Rev Dr. P.B. Amolik as
trustee of the Trust “forever”?
26. In order to evaluate the rival contentions, at the outset,
reference is necessary to the provisions contained in section 41D of the
MPT Act, which read thus:
“41D. (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 malfeasance 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) When the Charity Commissioner proposes to take action under
sub-section (1), he shall frame charges against the trustee or the
person against whom action is proposed to be taken and give him an
opportunity of meeting such charges of testing the evidence adduced
against him and of adducing evidence in his favour. The order of
suspension, removal or dismissal shall state the charges framed
against the trustee, his explanation and the finding on each charge,
with the reasons therefor.
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(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 trustees, 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) A trustee, aggrieved by an order made under subsection (1)
may, within ninety days from the date of communication of the order
of suspension, removal or dismissal, apply to the Court against such
order.
(6) An appeal shall lie to the High Court against the decision of
the Court under sub-section (5) as if such decision was a decree
from which and appeal ordinarily lies.
(7) The order of the Charity Commissioner shall, subject to any
order of the Court or in appeal, be final.”
27. From the aforesaid, it is clear that the Charity Commissioner
may either on an application of trustee or any interested in the Trust, or
on receipt of report under section 41D of the MPT Act or suo motu
suspend, remove or dismiss any trustee of a public trust, if such trustee
makes persistent default in the submission of accounts report or return;
wilfully disobeys any lawful orders issued by the Charity Commissioner
under the provisions of MPT Act or rules made thereunder by the State
Government; continuously neglects his duty or commits any mal-
feasance or misfeasance, or breach of trust in respect of the trust;
misappropriates or deals improperly with the properties of the trust of
which he is a trustee; or accepts any position in relation to the trust
which is inconsistent with his position as a trustee; if he is convicted of
an offence involving moral turpitude. There is no dispute in terms of
section 3 of the MPT Act, even a Joint Charity Commissioner is
empowered to exercise powers under section 41D of the MPT Act.
Accordingly, there is no challenge to the exercise of powers under
section 41D of the MPT Act by the Joint Charity Commissioner.
28. Section 41D(2) of the MPT Act provides that when the Charity
Commissioner proposes to take action under sub-section (1) of section
41D of the MPT Act, i.e., action of suspension, removal or dismissal of
the trustee, the Charity Commissioner shall frame charges against the
trustee and give him an opportunity of meeting such charges of testing
the evidence adduced against him and of adducing evidence in his
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favour. The order of suspension, removal or dismissal will have to state

the charges framed against the trustee, his explanation and record the
finding on each charge, with the reasons therefor.
29. Section 41D of the MPT Act provides that 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 trustees, 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. This
provision, is possibly the provision under which the Joint Charity
Commissioner, by his order dated 17 December 2012 appointed an
Administrator to govern the affairs of the Trust. However, from the
impugned order, it is not at all clear as to whether, in terms of the
instrument of the Trust, governance of Trust was not possible,
consequent upon the suspension and removal of the appellants in First
Appeal Nos. 1244 of 2015 and 1250 of 2015.
30. In this case, perusal of the Joint Charity Commissioner's order
dated 17 December 2012 would indicate that there is substantial
compliance with the procedure prescribed under section 41D(2) of the
MPT Act.
31. From the record, it is apparent that the Joint Charity
Commissioner did frame charges against the trustees, afford such
trustees sufficient opportunity of meeting such charges of testing the
evidence adduced against them and opportunity for themselves
adducing evidence in their favour. Accordingly, there is no case made
out to interfere with the impugned orders on the grounds of breach of
any principles of natural justice or lack of opportunity to meet charges,
to test the evidence in support of the charges or to adduce the evidence
in order to demolish the charges so leveled. Besides, the impugned
order dated 17 December 2012 made by the Joint Charity
Commissioner states the charges framed against the trustees, records
their explanation and further, also gives findings on each charge with
reasons therefor. On procedural grounds, therefore, there is no case
made out to interfere with the impugned order.
32. The Full Bench of this Court in Prabhakar S. Chaudhari v.
Laxman B. Mali - Second Appeal No. 700 of 2008 decided on 1 April
2016 (Aurangabad Bench) in the context of provisions of section 72(4)
of the MPT Act held that even though, the said provision contemplates
an appeal to the High Court against the decision of the court under sub
-section (2) of section 72 of the MPT Act, as if, such decision was a
decree from which an appeal ordinarily lies, such appeal, is not to be
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adjudged by the rigorous, which normally apply to a second appeal

under section 100 of CPC. Applying similar principle to an appeal under
section 41D(6) of the MPT Act, it will be safer to proceed on the basis
that the present appeals, though technically are second appeals, the
same, will not be adjudged by applying the rigorous of section 100 of
the CPC, in absence of any specific provisions to this effect under the
MPT Act. Accordingly, the full opportunity was granted to learned
counsel for the parties to make their submissions in the context of
charges which have been held as proved against the appellants in First
Appeal Nos. 1244 of 2015 and 1250 of 2015. The record was also
examined and considered for this purpose. Further, since this matter
relates to charges and action under section 41D of the MPT Act, this
court, was conscious of the circumstance that the higher degree of
proof is necessary in order to sustain the charges levelled against the
appellants, as laid down in certain decisions on the subject, to which,
some reference was made by Mrs. Thorat, learned counsel for the
appellants in First Appeal No. 1250 of 2015.
33. The charge levelled against Rev. Dr. P.B. Amolik was that he
permitted frittering away of the trust property, i.e., Claire Road
property, C.T.S. No. 242, for a song and without there being any
resolution of the Board of Trustees authorising such action. By way of
elaboration, it was stated that the Claire Road property admeasuring
785 sq.mtrs of which, the Trust was a lessee in terms of lease deed
dated 19 April 1938 for a period of 99 years was purported to be sold to
Fizabhai and Nafisa Ali Taherbhai for a consideration of Rs. 7 lakhs or
thereabouts, when in fact, the Ready Reckoner price estimates the
value at Rs. 3 crores. It is stated that the purchasers have constructed
a 40 storey building upon said property and amassed a fortune and the
Trust, has only received an amount of Rs. 7 lakhs.
34. Mrs. Thorat, learned counsel for Rev. Dr. P.B. Amolik, submitted
that the purchasers were sub-lesses in respect of Claire Road property.
Since, the Trust was only the lessee of the property, there was no
necessity of obtaining permission of the Charity Commissioner under
section 36(1)(a) of the MPT Act and therefore, there was no infirmity in
transferring the property to the purchaser even during pendency of
application under section 36(1)(a) of the MPT Act. She submits that the
amount of Rs. 8,50,000/- was received by cheque and therefore, the
charge as levelled against Rev Dr. P.B. Amolik was required to be held
has not proved or in any case not sufficient to warrant any action under
section 41D of the MPT Act.
35. The Joint Charity Commissioner as well as the City Civil Court,
Mumbai in the impugned judgments and orders, upon appreciation of
the evidence on record in great details held the charge as proved as
against Rev. Dr. RB. Amolik. The evidence on record clearly establishes
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that the Trust had held the Claire Road property, which is undoubtedly,
a prime property, on basis of lease for the term of 99 years. The
evidence on record also establishes that absence of any proper
resolutions to back the action of Rev. Dr. RB. Amolik. The evidence on
record also establishes that permission was applied for from the Charity
Commissioner under section 36(1)(a) of the MPT Act. However, even
before such permission could obtained, Rev. Dr. RB. Amolik proceeded
with the transactions and eventually transferred the Claire Road
property ad-measuring 785 sq. meters and conservatively valued at
least Rs. 3 crores to Fizabhai and Nafisa Ali Taherbhai, for virtually a
song. The circumstance that the amount of Rs. 7 lakhs or Rs. 8,50,000/
- (as is borne from the evidence on recored) was received by cheque in
favour of the Trust, is hardly some ground to excuse or mitigate the
action of Rev. Dr. P.B. Amolik in dealing with the trust property, in such
a manner. Section 41D(1)(d) clearly provides that the Charity
Commissioner may suspend, remove or dismiss a trustee, where the
trustee misappropriates or deals improperly with the properties of the
trust of which he is a trustee. The evidence on record is more than
sufficient to sustain the first charge against Rev. Dr. P.B. Amolik as well
as the other trustees, who, at least, on account of their neglect,
permitted, frittering away of the trust property both, without authority
of law and virtually, for a pittance.
36. The second charge against the trustees, who were styled as
opponent Nos. 1 and 3 in Application No. 28 of 2009 made before the
Joint Charity Commissioner is that they took no steps to recover an
amount of Rs. 2,32,10,000/- from the developer of the property styled
as St. Crispin's Home, at Pune, which was due and payable to the
Trust. On this ground, it was alleged that there is continuous neglect on
the part of the said trustee in discharge of their duties, apart from
misfeasance, malfeasance and improperly dealing with the trust
property.
37. Again, there is substantial evidence on record to sustain the
finding that such charge stands proved. Apart from concurrent findings
recorded by the Joint Charity Commissioner and the City Civil Court,
Mumbai, it is to be noted that there is ample evidence on record which
establishes that such amounts were required to be recovered from the
developer in relation to the development of the trust property. The
material on record also establishes that the said trustees were
responsible and duty bound to have taken steps to effect such recovery.
Rather than take such steps, it is apparent that the said trustees, failed
and neglected in discharge of their duties. Accordingly, there is no
reason to interfere with the findings as regards Charge No. 2.
38. Charge No. 3 was framed against Rev. Dr. P.B. Amolik to the
effect that he leased out the trust property at Matheran bearing M.P.
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No. 10, admeasuring 27652.5 sq.mts, without sanction from the

Charity Commissioner by misleading the Board of Trustees. There is
also a charge that Rev. Dr. P.B. Amolik did not account the lease rent
and thereby continuously neglected his duty and committed
malfeasance, misfeasance and misappropriation and even otherwise,
improperly dealt with the trust property. Again, the Joint Charity
Commissioner as well as the City Civil Court, Mumbai have held the
charge as proved on the basis of material on record.
39. Mrs. V.V. Thorat, learned counsel for Rev. Dr. EB. Amolik, has
contended that permission from the Joint Charity Commissioner could
not be obtained as the lease deed dated 23 March 2005 was in a
cupboard located in the trust office and the same was sealed by Azad
Maidan Police Station. She further contended that Matheran property
was not leased to Deep Swapna Trust for any commercial purpose, but
the same was leased because the objects of the Trust were similar to
the objects of the Bombay Diocesan Trust Association Private Ltd.
Further, Mrs. Thorat contended that after the term of lease expired,
only a leave and licence was granted and there is no prohibition under
the MPT Act for entering into any such transactions.
40. The evidence on record does indicate that sealing of the Trust
office by Azad Maidan Police Station took place some time in March
2004. This means that the lease agreement dated 23 March 2005 could
not have been in the cupboard at the trust office, which stood sealed
from May 2004. In any case, the defences hardly merit acceptance. In
absence of proper and valid reasons and without apprising Board of
Trustee of full, true and correct particulars, Rev. Dr. P.B. Amolik was
not at all justified in dealing with Matheran property admeasuring
27652.5 sq. meters, in the manner in which he has purported to deal
with the same. Again, this is a clear case of improperly dealing with the
Trust property. Such a large and valuable property at Matheran was
purportedly handed over to another trust without being any
corresponding benefit to the Trust. Accordingly, the third charge
against the appellant stands duly proved.
41. The fourth charge against the trustees styled as opponent Nos. 1
to 10 (except opponent No. 2)) in Application No. 28 of 2009, is that
they dealt with yet another Mahabaleshwar property of the trust, in a
totally improper manner and further, continuously neglected their
duties and committed acts as contemplated by section 41D(1)(b)(c) of
the MPT Act. The charge is that the property was agreed to be sold to
one Mrs. Sulochana Bavlekar for an amount of Rs. 5 lakhs, which
amount in fact was deposited by her with the trust. The trustees in
question, even without there being any resolution in that regard,
created a lease in respect of said Mahabaleshwar property in favour of
M/s. Sawarna Builders. The amount received from M/s. Sawarna
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Builders was not at all properly accounted for and at a later stage, an
amount of Rs. 10 lakhs was indicated as liability to M/s. Sawarna
Builders. Again, both the Joint Charity Commissioner as well as the City
Civil Court, Mumbai have held this charge as proved against the
trustees.
42. There is documentary evidence on record, which indeed supports
the charge leveled against the trustees. There are no resolutions
produced by the trustees in support of their action. The amount of Rs.
10 lakhs received from M/s. Sawarna Builders was indicated as liability
to the developer and that too, with regard to Mahabaleshwar property,
when in fact, M/s. Sawarna Builders were dealing with the
Mahabaleshwar property of the Trust. This is again, a case where the
trustees, have improperly dealt with the trust property and thereby,
caused losses to the trust. The appeal court has in fact recorded the
trustee's disobeyed the orders made by the Joint Charity Commissioner
and further, there was misappropriation of Rs. 5 lakhs. Even if
misappropriation aspect is excluded from consideration, there is
sufficient material on record to sustain charge No. 4 with regard to
improper dealing with Mahabaleshwar property of the Trust.
43. The fifth charge leveled against the trustees styled as opponent
Nos. 1 to 10 (except opponent No. 2) in Application No. 28 of 2009
relates to Ahmedabad property admeasuring 108846 sq.ft. This charge
is held as not proved against the trustees. As such there is no necessity
to proceed further in relation to this charge.
44. The sixth charge leveled against the trustees styled as opponent
Nos. 1 to 10 (except opponent No. 2) in Application No. 28 of 2009
states that the trustees alienated Proctor Road property from
development, without there being any sanction or proper resolution of
the Board of Trustees. There is also reference to Agripada property in
relation to Charge No. 6.
45. The charge is that the properties were transferred without
permission and in any case in breach of terms of sanction by the
Charity Commissioner. The transferee, consumed the entire FSI,
constructed building and flats, which were eventually sold to third
parties. Several defences were raised, which, deserve no acceptance.
One of the defence was that all this exercise was done because the
Trust received a donation of Rs. 10 lakhs. This is hardly a valid defence
to such a serious charge of improperly dealing with trust property. The
evidence on record including in particular documentary evidence on
record, which has referred to by the Joint Charity Commissioner and
also the appellate court very clearly establishes this charge. In fact, the
appellate court has observed that the flats were never sold to the
persons from low income group or Christians. However, opponent No.
10, who signed the agreement received an amount of Rs. 15 lakhs and
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residential accommodation, as a quid pro quo. All this material is

sufficient to prove the 6th charge leveled against the trustees.
46. The seventh charge was against the trustee styled as opponent
no. 10 in Application No. 28 of 2009. The charge was that this trustee
signed the Memorandum of Understanding dated 18 August 2009 as a
Chairman of Emmanuel Church Co.Op. Housing Society, which is the
society of the beneficiaries of the Bombay Diocesan Trust Association
Pvt. Ltd. On this basis it was alleged that the said trustee had accepted
the position in relation to the Trust, which is inconsistent with his
position as a trustee.
47. Although, both Joint Charity Commissioner as well as the City
Civil Court at Mumbai have held this charge as proved, since, it is not
quite clear as to how such action on the part of the opponent No. 10
trustee attracts the provisions contained in section 41D(1)(e) of the
MPT Act, it will be safer to hold said charge as not proved against
opponent No. 10 trustee. This, however, affords no cause to interfere
with the final impugned orders.
48. Charge No. 8 leveled against Rev. Dr. P.B. Amolik, is that the
said trustee, without authority or resolution of the board of trustee
improperly dealt with the Panvel property of the Trust. The Trust, in any
case was due to get 72480 sq ft of built up area from the developer
M/s. Nikhil Enterprises. The trustee, took no steps to recover such area.
Besides, the trustee caused vague resolutions to be passed conferring
undue benefits to the developer. Thereafter, in breach of restraining
orders certain flats were permitted to be sold for throw away prices. By
way of illustration, it was alleged that Flat No. 403 ad-measuring about
793 sq. ft having market value of Rs. 40 lakhs was sold for
consideration of hardly Rs. 4,80,000/-.
49. Again, both the Joint charity Commissioner and the City Civil
Court, Mumbai have held the charge as proved. There is ample
documentary evidence to hold that the charge as proved. The defence,
as raised by Mrs. Thorat was totally vague and therefore, merits no
acceptance. From the material on record, it is apparent that the
trustees dealt with the Trust property improperly and has in fact
frittered away the trust property for a song. There are no resolutions or
permission from the competent authority to sustain such acts. The
documents produced on record clearly establish this charge.
50. Charge No. 9 relates to the property at Pune. The allegation is
that Rev. Dr. P.B. Amolik was styled as Opponent No. 1 in Application
No. 28 of 2009 entered into a development agreement with Jai
Construction, without there being any resolution of the Board of
Trustees. Again, the agreement purported to confer certain rights upon
the builder at the rate of Rs. 65/- per sq. ft. An amount of Rs. 75 lakhs
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was received from the developer, but never accounted for. In the
records, the liability was indicated against Pune property ad-measuring
2,65,892 sq. ft in an amount of Rs. 5 lakhs for the financial year 2005-
2006.
51. Again, the Joint Charity Commissioner and City Civil Court,
Mumbai have correctly held this charge as proved against the trustee.
There is no proper resolution on record authorising the trustee to enter
into the transaction in this magnitude in relation to the trust property.
No permission has been obtained from the statutory authority for
dealing with the Trust property in this manner. There is no explanation,
regards the amount of Rs. 75 lakhs. This is indeed a serious charge and
the same stand proved, even on the basis of the documents on record.
52. Finally, the tenth charge relates to the Trust property,
admeasuring 2659 sq. mtrs at Guruwarpeth Pune. The allegation is that
Rev. Dr. P.B. Amolik styled as opponent No. 1 in Application No. 28 of
2009 is alleged to have dealt with the development rights in respect of
this property were given to Mr. Ambalal Jain and an amount of Rs.
7,50,000/- was purportedly received as donation. Again, both Joint
Charity Commissioner and City Civil Court have held the charge as
proved against the trustee. The documents on record bear out that the
Trustee dealt with this property in absence of any resolution or
permission from the statutory authority Obviously the value of the
property at Guruwar Peth, Pune admeasuring 2659 sq. mtrs. is much
greater and it is not possible to accept that the transaction was entered
into in lieu of donation of Rs. 7,50,000/- in favour of the Trust. This
charge is also rightly held as proved against the trustee.
53. After holding the charges as proved, the Joint Charity
Commissioner made the following order dated 17 December 2012:
ORDER
1. Application is allowed.
2. Opponent No. 1 Mr. PB. Amolik is hereby dismissed from the
trusteeship of the Trust “Bombay Diocesan Trust Association Pvt.
Ltd.”, having PT.R. No. E-923 (Bom.) u/s. 41D of The Bombay
Public Trust Act, 1950 forthwith forever.
3. Opponent Nos. 3, 4, 5, 6, 7, 9 & 10 are hereby removed from the
trusteeship of the Trust “Bombay Diocesan Trust Association Pvt.
Ltd.” having PT.R. No. E-923 (Bom.) u/s.41D of The Bombay
Public Trust Act, 1950 for six months from the date of passing of
this order.
4. Opponent No. 8 is hereby removed from the trusteeship of the
Trust “Bombay Diocesan Trust Association Pvt. Ltd.”, having P.T.R.
No. E-923 (Bom.) u/s. 41D of The Bombay Public Trust Act, 1950
for five years from the date of passing of this order.
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5. Deputy Charity Commissioner is hereby directed to dispose off all

the pending change reports before him in respect of “Bombay
Diocesan Trust Association Pvt. Ltd.” having P.T.R. No. E-923
(Bom) within a period of six months from date of passing of this
order.
6. Assistant Charity Commissioner (I) & Assistant Charity
Commissioner (Hospital) are hereby directed to take over the
charge of BDTA Trust & to lookafter the day to day management
and administration of the Trust. Assistant Charity Commissioner
(Hospital) to assist and co-operate to Assistant Charity
Commissioner (I). They are further directed to hold election of the
Trust as per the provisions of the Articles of Association within a
period of six months from the date of passing of this order and
report compliance to this authority. They are further directed not
to take any policy decision.
7. Assistant Charity Commissioner (II) is hereby directed to hold
enquiry in respect of the Trust property in direction that how
many Trust properties are sold during the tenure of opponent No.
1 and in how many transaction there is a valid resolution passed
by the trustees and whether there is a sanction obtained before
alienation of the property. He is also directed to assess the loss
caused to the Trust by the misappropriation, negligence in duties,
breach of trust at the hands of opponent trustees & report
accordingly.
8. Parties be informed accordingly.
9. Send the copy of this judgment to Assistant Charity Commissioner
(I), (II) & (Hospital) immediately.”
54. Since, most of the charges against the trustees stand proved,
there is really no case made out to interfere with the exercise of powers
by the Joint Charity Commissioner under section 41D of the MPT Act.
The Joint Charity Commissioner, has in fact, been charitable to most of
the trustees except perhaps Rev. Dr. P.B. Amolik, since, most of the
trustees, were removed as trustees only for a limited period of six
months and the trustee styled opponent No. 8 was removed for a
period of five years. Rev. Dr. RB. Amolik was, however, dismissed from
the trusteeship “forever”. Although, the charges held as proved against
Rev. Dr. P.B. Amolik are indeed serious and warrant a very serious
action, the question is whether the Joint Charity Commissioner is
empowered to order the removal a trustee “forever”?.
55. Mr. Godbole, learned counsel for James Baker and another, i.e.,
applicants in Application No. 28 of 2009, relied upon certain principles
in service jurisprudence and submitted that an employer, in case of
proved and gross misconduct on the part of employee, can always
dismiss the employee and particularly in case of government service
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can impose penalty of dismissal which shall operate as disqualification

for future employment in government service. Mr. Godbole also made
reference to certain provisions of Pension Scheme, 1995 as regards
forfeiture of service, particularly in case of gross misconduct. Mr.
Godbole has also relied upon decision of Hon'ble Supreme Court in
Shyam Lal v. State of U.P. - AIR 1954 SC 369 in support of such
submission.
56. On the other hand, Mrs. Thorat, placed on record the
Maharashtra Ordinance No. XIII of 1997 dated 28 May 1997, by which,
certain sub-sections were inserted in section 41D of the MPT Act, so as
to disqualify trustees, who were dismissed by the Charity Commissioner
under sub-section (1) of section 41D of MPT Act from contesting
elections or being appointed to the office of the Trust, unless such
dismissal is stayed by competent court or ultimately set aside. She
submits that such ordinance lapsed and therefore, subsections 7 and 8
to section 41D of the MPT Act, no longer find place on the statute book.
She submits that in absence of such provisions, the Joint Charity
Commissioner clearly exceeded jurisdiction in dismissing Rev. Dr. P.B.
Amolik as trustee of the Trust “forever”.
57. The second point for determination in this appeal is therefore,
whether the Joint Charity Commissioner is empowered under section
41D of the MPT Act to dismiss Rev. Dr. P.B. Amolik as trustee of the
Trust “forever”?.
58. Although, it is true that Rev. Dr. P.B. Amolik has committed very
serious acts of misconduct and action is warranted against him under
section 41D of MPT Act, the question really is whether the Joint Charity
Commissioner has power to order dismissal of the trustee “forever”. The
import of Joint Charity Commissioner's order, which has now been
upheld by the City Civil Court is that Rev. Dr. P.B. Amolik stands
dismissed as a trustee not only for the term for which he was appointed
as a trustee, but, the expression “forever” indicates that Rev. Dr. P.B.
Amolik is disqualified from contesting any elections or being appointed
to the office of the trustee, unless, the dismissal order is stayed or set
aside by the appellate authority. In this case, there is no case made out
to set aside the dismissal order. This means that if the impugned order,
which purports to dismiss Rev. Dr. EB. Amolik “forever” is sustained,
then Rev. Dr. EB. Amolik will not be in a position to contest for election
or be appointed, as a trustee of the trust.
59. The principles of service jurisprudence cannot be imported in a
matter of this nature. In any case, Mr. Godbole relied upon the specific
provision under certain service regulations, which permit the adoption
of such a course of action. However, such provisions, are conspicuous
by their absence in the MPT Act.
60. The Legislature, was perhaps conscious of the absence of such
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provision and with a view to remedy such mischief, the Bombay Public
Trust (Amendment) Ordinance 1997 (1997 Ordinance) was
promulgated in order to insert sub-sections 7 and 8 in section 41D of
the MPT Act.
61. The 1997 Ordinance reads thus:
“MAHARASHTRA ORDINANCE No. XIII of 1997
(28th May 1997)
BOMBAY PUBLIC TRUSTS (AMENDMENT) ORDINANCE, 1997
AN ORDINANCE further to amend the Bombay Public Trusts Act,
1950.
WHEREAS both Houses of the State Legislature are not in session;
AND WHEREAS the Governor of Maharashtra is satisfied that
circumstances exist which render it necessary for him to take
immediate action further to amend the Bombay Public Trusts Act,
1950;
NOW THEREFORE, in exercise of the powers conferred by clause
(1) of article 213 of the Constitution of India, the Governor of
Maharashtra is hereby pleased to promulgate the following
Ordinance, namely:—
1. Short title and commencement. - (1) This Ordinance may be
called the Bombay Public Trusts (Amendment) Ordinance, 1997
(2) It shall come into force at once.
2. Amendment of section 41D of Bom. XXIX of 1950. -In section
41D of the Bombay Public Trusts Act, 1950 (hereinafter
referred to as “the principal Act”), after sub-section (7) the
following sub-section shall be added, namely:—
“(8) A trustee of a public trust who has been
dismissed by the Charity Commissioner under sub-
section (1), shall be disqualified for contesting any
election or being appointed, to the office of a trustee
of such trust unless-
(i) the order of his dismissal is stayed or set aside by the
Court under sub-section (5) or by the High Court, in
appeal, under sub-section (6); or
(ii) no stay is granted by the High Court in an appeal filed
by the Charity Commissioner or any trustee of the trust or
any person interested in the trust, under sub-section (6),
against the order of the Court under sub-section (5)
setting aside the dismissal order of the Charity
Commissioner”.
62. If the impugned action had been taken during subsistence of the
Ordinance, then, there was absolutely no reason to interfere with the
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impugned order to the extent it disqualifies Rev. Dr. P.B. Amolik from
contesting or being appointed to the office of a Trust. However, at the
stage where the impugned orders were made, the ordinance had
already lapsed and was no longer operative. It is an admitted position
that the State Legislature did not introduce of bill in the legislative
assembly, so as to amend section 41D of the MPT Act, by inserting sub-
sections 7 and 8 to section 41D as aforesaid. Mr. Godbole's contention
that the Ordinance was allowed to lapse or that no bill was introduced
in the legislative assembly because the existing provisions of section
41D of the MPT Act itself imposed an implied bar, cannot be accepted.
The circumstance that an Ordinance was promulgated and sub-sections
7 and 8 introduced in section 41D of the MPT Act, itself suggests that
but for such promulgation and introduction, there was no power vested
in the Charity Commissioner to debar a dismiss trustee from re-
contesting for the position of trustee, consequent upon determination of
his tenure.
63. In view of the aforesaid, although, the dismissal of Rev. Dr. P.B.
Amolik is required to be upheld, such dismissal, to the extent, it
purports to debar Rev. Dr. P.B. Amolik from contesting for the position
of trustee post determination of his tenure, is required to be set aside.
This means that the expression for “forever”, as it appears in clause (2)
of operative portion of the judgment and order dated 17 December
2012, is liable to be set aside and is hereby set aside. First Appeal No.
1250 of 2015 instituted by Rev. Dr. P.B. Amolik is therefore, allowed to
the aforesaid extent only.
64. This is a fit case where the appellants in First Appeal Nos. 1244
and 1250 of 2015 are required to be saddled with exemplary costs.
From the evidence on record, it is clear that the appellants-trustees
have frittered away the trust property for a pittance. The appellants
have raised false and frivolous defences to the charges under section
41D of the MPT Act and further, failed to establish such defences. Such
costs are required to be paid to the Joint Charity Commissioner.
65. There is no dispute that tenure of the trustees, has already
expired. There is no dispute that in terms of the instrument of trust the
elections are long over due. Already there are directions issued for
holding elections in accordance law, such directions are required to be
implemented. In fact, the concerned Charity Commissioner, should
ensure that the election process is completed as expeditiously as
possible and in any case not later than three months from the date of
this order.
66. Writ Petition No. 12089 of 2015 instituted by Jamesh Baker and
another impugns the following observation recorded in the impugned
order dated 30 October 2015 made by the City Civil court, Mumbai.
“85. Needless to mention that the applicant no. 1 Mr. James Baker
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is also not a holy cow. He is involved in several criminal activities.

Some criminal cases are pending against him in Gujarat state. It
further seems that after passing impugned judgment the applicant
no. 1 with a view to capture the trust seems to have filed certain
applications with Joint Charity Commissioner and attempted to
mislead. Be that as it may the parties to present proceeding are not
free blame, therefore, I recommend/suggest the learned Joint
Charity Commissioner to initiate soumoto (sic) proceeding under
section 50A of the Act prepare a scheme and to appoint Collector as
Ex-officio Chairman of the Trust to manage the Trust. I further
recommend that the learned Joint Charity Commissioner appoint
prominent persons from Christan community as trustees of the Trust
by following the procedure as contemplated u/s. 50-A of the Act so
that the huge property of the Trust in question can be saved from
being wasted in future at the hands of applicant no. 1 and all the
respondents.”
67. In a matter of this nature, the observations that James Baker is
not a holy cow or that he has mislead the authority, were really not
warranted. In a matter of this nature, what is really important is the
message and not messenger. Section 41D of the MPT Act also
empowers the Charity Commissioner to exercise his jurisdiction suo
moto. Accordingly, the observations made against James Baker are
ordered to be expunged. The writ petition is therefore, allowed to the
said extent.
68. The appeals and the writ petition are therefore, disposed of with
the following order:
a] First Appeal Nos. 1327 and 1328 of 2015 are disposed of by
clarifying that nothing in the impugned orders dated 17 December
2012 and 30 October 2015 cast or shall be construed as casting
an stigma upon appellant Nos. 2, 3 and 4 in the said appeals or
renders them ineligible to contest for the position of trustees of
the said Trust at the election/election process now ordered to be
held for the position of trustees to the trust;
b] First Appeal No. 1244 of 2015 is dismissed with costs assessed at
Rs. 25,000/- (Rupees Twenty Five Thousand only) payable by the
appellant to the Joint Charity Commissioner within a period of four
weeks from today;
c] First Appeal No. 1250 of 2015 is partly allowed and the expression
“forever” which appears in clause (2) of the operative portion of
the impugned order dated 17 December 2012 made by the Joint
Charity Commissioner is set aside. However, the appeal, to the
extent, it challenges the rest part of the impugned order dated 17
December 2012 and the impugned order dated 30 October 2015,
is hereby dismissed with costs assessed at Rs. 1,00,000/-
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(Rupees One Lakh only) payable by Rev. Dr. P.B. Amolik to the
Joint Charity Commissioner, within a period of four weeks from
today;
d] Writ Petition No. 12089 of 2015 is allowed and the observations
made in paragraph 85 of impugned judgment and order dated 30
October 2015 made by the City Civil Court, Mumbai against the
petitioner James Baker, are set aside;
e] The concerned Charity Commissioner and the Joint Charity
Commissioner is directed to hold elections for the position of
trustees of the Trust, in accordance with law as expeditiously as
possible and to complete election process, not later than three
months from the date of this order;
f] The first appeals and the writ petition are disposed of in the
aforesaid terms;
g] The pending civil applications do not survive and the same are
disposed of.
(M.S. Sonak, J.)
69. At this stage, Mrs. Thorat, learned counsel for the appellant-Rev
Dr. RB. Amolik requests that the time for payment of costs by the
appellant Rev. Dr. RB. Amolik be extended to eight weeks instead of
four weeks. The extension is granted. Accordingly the costs may be
paid withing eight weeks from today.
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