Bapurao Shankar Rathod And Others v. The State Of Maharashtra Through The Secretary And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 1634 OF 2025 BAPURAO SHANKAR RATHOD AND OTHERS

VERSUS

THE STATE OF MAHARASHTRA THROUGH THE SECRETARY AND OTHERS ...

Advocate for the Petitioners : Mr. Mukul S. Kulkarni AGP for Respondent/State : Mr. V. M. Kagne Advocate for Respondent No. 2 : Mr. Vivek J. Dhage ...

WITH WRIT PETITION NO. 1285 OF 2025 BALASAHEB NARAYAN RATHOD

VERSUS

THE JOINT CHARITY COMMISSIONER LATUR AND OTHERS ...

Advocate for the Petitioners : Mr. V. D. Gunale AGP for Respondent Nos. 1 and 2 : Mr. V. M. Kagne Advocate for Respondent No. 3 : Mr. M. S. Kulkarni ...

CORAM

:

MANGESH S. PATIL & PRAFULLA S. KHUBALKAR , JJ.

DATE : 18.02.2025 PER COURT :

.

In both the matters, different parties to a statutory appeal pending before the Joint Charity Commissioner under Section 70, question the selfsame order purportedly passed in light of Section 41-A of the Maharashtra Public Trust Act.

2.

One of the petitions, viz., writ petition No. 1634 of 2025, has been circulated before us, purportedly in light of the decision of 1/3

the division bench in the matter of Vanmala Manoharrao Kamdi and Ors. V/s. The Deputy Charity Commissioner, Nagpur Division, Nagpur and Ors. 2012 (3) MhLJ 594.

3.

The other writ petition No. 1285 of 2025 was circulated before the learned Single Judge according to the roster. However, by the order dated 06.02.2025, again by referring to Vanmala Manoharrao Kamdi (supra), since the order under challenge has been passed in purported exercise of power under Section 41-A and in light of Vanmala Manoharrao Kamdi (supra), by observing that the matter would lie before the division bench, even that writ petition is circulated before us.

4.

Admittedly, Vanmala Manoharrao Kamdi (supra) was decided in the year 2012. Conspicuously, it was a substantive order passed by the Assistant Charity Commissioner or Deputy Charity Commissioner under Section 41-A, which was a subject matter of challenge before the High Court, and the issue had arisen in that conspectus.

5.

Another division bench in Subodhchandra Motiramji Lahane V/s. Assistant Charity Commissioner, Akola 2019 (1) MhLJ 210, has distinguishedVanmala Manoharrao Kamdi (supra) with the observations that it would apply only in such challenges where the substantive order under challenge is passed under Section 41-A. 2/3

Conversely, it is held that when such order under Section 41-A is passed in an appeal under Section 70 against the order passed in the matter of Change Reports filed under Section 22, the challenge to the order passed under Section 41-A being merely an incidental order or a consequential one, depending upon the substantive challenge in which this order is passed, the matter would lie before a Single Judge.

6.

Independently, Rule 18 of Chapter XXVII of the Bombay High Court Appellate Side Rules, Sub-Clause 46 expressly mentions that orders passed under Bombay Public Trusts Act, 1950, as one of the categories of the orders, challenge to which would lie before a Single Judge.

7.

In light of the above, both the matters would lie before a Single Judge, since the order under challenge, though passed under Section 41-A which is an administrative order, has been passed in a substantive appeal under Section 70 of the Maharashtra Public Trust Act.

8.

Remove from the board.

(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.) jhs/ 3/3