CALVIN MACWAN Vs. COMMISSIONER P MARY RAJAKUMARI

JUDGEMENT

(1.) The petitioners have challenged the order of the Judge of Bombay City Civil Court dated 04.11.2011 setting aside the order of the Joint Charity Commissioner, Mumbai (JCC) dated 17.03.2010 in an application of the petitioners filed before the JCC under Section 41E of the Bombay Public Trust Act, 1950. The order disposes of the application on merits without remand. It is contended that the matter should have been remanded and the appeal could not have been disposed of finally. The extent of the powers of an appellate Court are, therefore, required to be considered.

(2.) The petitioners applied under the aforesaid section as 2 persons interested in the trust property. The petitioners must show their interest. Petitioner No.1 claims to be a member/beneficiary of the suit trust registered under No. E/1052 of the Bombay Public Trust Act, 1950 (BPT Act). The petitioner has produced a membership certificate title "Dedication Certificate" of the suit trust. Petitioner No.2 has not produced any such certificate. He is employed by the trust as the driver. He was given accommodation as an employee. He did not perform his duties as driver. A disciplinary action came to be taken against him. He has sought to join in the application with petitioner No.1. He has not shown how he was interested in the trust since he was not a member. He has not disputed that he was a driver against whom certain proceedings were taken. He has not shown any other relationship.

(3.) The Learned Judge has seen in the impugned order that 2 persons mandatorily required to make their application under Section 41E of the BPT Act had not so applied, since the interest of at least one of them was not prima facie shown. Hence on merits the learned Judge has dismissed their application itself.