TMI Blog2012 (3) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Maharashtra declared its intention to protect the temple maintained by said Trust as the same was a protected monument defined in Maharashtra Ancient Monuments and Archaeological Sites and Remains Act, 1960. 4. On 16th March, 1983, by a notification, said Temple was declared as a protected monument. 5. on 3rd May, 1984, a scheme was framed by the then District and Sessions Judge, Ratnagiri, by way of decree passed in Suit No. 8 of 1971, filed by the Charity Commissioner. As per the said scheme, Trustees are to be appointed by learned District Judge, Ratnagiri, under Clause 9 (c) of the Scheme. 6. On 26th September, 1984, learned District Judge, by its order appointed 6 trustees. 7. On 25th September, 1989, subsequently, by order, six trustees were appointed. Then tenure of said appointed trustees was extended from time to time upto 19th November, 1995. 8. On 11th May, 1994, Petitioner submitted several complaints with the learned District Judge, as the said trustees were mismanaging the affairs of trust. Similar complaints were filed on 18th July, 1994, 8th November, 1994, 28th December, 1994 and 22nd January, 1995. 9. On 11th November, 1994, State of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner was not challenging the report of the learned District Judge, dated 18th February, 1997. Thereafter, the impugned order has been passed. SUBMISSIONS OF PETITIONER 18. Mr. Kumbhakoni advanced the following submissions:- (i) He submitted that there were serious irregularities committed by the trustees and acts of misfeasance and malfeasance had been committed and, hence, a concrete case for taking action for removal of Respondent Nos.1 to 3 under Section 41-D of the said Act was made out. (ii) Mr. Kumbhakoni laid particular emphasis on the report of the then District Judge, Ratnagiri- Shri V. G. Munshi. Special emphasis was laid on point No. 2 in the said report which relates to failure to take effective steps to get the names of the Trustees entered in the Revenue Records of the various properties of the Trust. He relied upon the observations made by the District Court on point No. 2 to the effect that no effective steps were taken to protect and preserve the properties of the Trust. (iii) He submitted that the idols were changed without the permission of the concerned department. He also submitted that contrary to the provisions of Maharashtra Ancien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negative. 22. In respect of the alleged waste of trust's funds by using the funds for Vajralep to the statues of the devotees is concerned, charge No. 3 had been framed. The Charity Commissioner has elaborately discussed the entire evidence in respect of charge No. 3 and thereafter, a finding has been recorded that the said charge is not proved. The Charity Commissioner has recorded the following finding:- .. In the report Exhibit 75 Honourable District Judge has specifically stated that, It is necessary to mention that any particular trustee or individual cannot be held responsible for any such act. 23. The Charity Commissioner has also relied on the Judgment reported in 1990 (2) BCR 702 in the case of Vajubhai Patel v/s. Charity Commissioner, Maharashtra which reads thus:- Imputation reflecting on integrity of people have to be fortified by proof of a high degree - Even if proceeding under Section 41-D be not a criminal proceeding, proof required to sustain charges therein must satisfy a higher standard than that normally required in cases governed by rule of preponderance of probabilities. 24. In so far as the constructions without permission of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof in such proceedings is some what more than normally required in cases governed by preponderance of probabilities and some what less than required in trials of criminal cases. The degree of proof required in criminal case is such that would prove criminal charge beyond a reasonable realm of doubt. The imputation reflecting on integrity of trustees have to be fortified by proof of high degree which would be somewhere in between standard of proof required in civil proceedings like a suit and criminal proceedings like a trial for offence of criminal breach of trust, or that of cheating. Thus, unless the lapse on part of the trustee is proved to be actuated by dishonestly or active connivance with other trustees, who are guilty of misfeasance or malfeasance, the drastic action under Section 41-D of the BPT Act may not be warranted. Para-19:- The expression misfeasance as used in Clause (c) of Section 41-D would imply commission of breach of trust. It is more than mere negligence of the trustee to perform his duty. Misfeasance includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with act of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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