Section 41 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
This article explains the Maharashtra Public Trusts Act, 1950 as it applies in the State of Maharashtra, formerly the Bombay Public Trusts Act, 1950. Section 41 is two sub-sections long. If the Charity Commissioner decides that a person connected with the trust is liable to pay the trust an amount for loss caused to it, he may direct that the amount be surcharged on that person, and his order is final and conclusive.
This article explains section 41 as amended up to Maharashtra Act No. XXXVI of 2018 (in force 21 May 2018), per the official text of the Law and Judiciary Department modified up to 19 December 2018. Maharashtra amended the Act again in 2019, 2020, 2024 and 2025; the amending texts consulted do not change this section, but the current text should be checked on the Charity Commissioner's website before relying on it.
If the Charity Commissioner decides that a person connected with the trust is liable to pay the public trust an amount for loss caused to it, he may direct that the amount be surcharged on that person (s.41(1)). The order is final and conclusive (s.41(2)). The decision of liability comes from the process in sections 38 to 40; section 41 is the step that turns the finding into a direction to pay.
What "surcharge" means here
The Act does not define "surcharge". In section 41 it is the Charity Commissioner's direction that a stated amount of loss "shall be surcharged on the person", that is, charged to that person as a sum he owes the trust. The word is used in the section heading "Order of surcharge" as well. The section does not use the word "penalty": the amount is the loss caused to the trust, not a fine on top of it. A person who is told that a surcharge is proposed can take legal dispute resolution advice before the hearing.
Sub-section (1): the power
"If the Charity Commissioner decides that any person connected with the trust is liable to pay to the public trust any amount for the loss caused to the trust, the Charity Commissioner may direct that the amount shall be surcharged on the person."
| Element | Words of the section | Comment |
|---|---|---|
| Who decides | "the Charity Commissioner" | Not the Deputy or Assistant Charity Commissioner. |
| The decision | "decides that any person connected with the trust is liable to pay to the public trust any amount for the loss caused to the trust" | The liability decision is made first, normally under section 40(1)(d). |
| The power | "may direct that the amount shall be surcharged on the person" | Discretionary: "may". |
The words "that any person connected with the trust" replaced "that any person" by Mah. 20 of 1971, s. 28, as the footnote prints. So the surcharge reaches a "person connected with the trust": a trustee, and also a manager, secretary or other person with a connection to the trust. The section does not list who is "connected".
Sub-section (2): finality, and the 2017 change
"The order of the Charity Commissioner under sub-section (1) shall be final and conclusive." The footnote says the words "The order" were substituted for the words "Subject to the provisions of section 72, the order" by Mah. 55 of 2017, s. 8. Section 72 (the provision on applications from the Charity Commissioner's decisions under certain sections, including section 41) is deleted in the 2018 text. So the printed sub-section no longer refers to it; the order is "final and conclusive" as the sub-section is now worded. What other remedies exist outside the section is not stated in the Act and is a matter for legal advice.
Where section 41 sits in the process
| Stage | Section | Officer |
|---|---|---|
| Audit report, inspection report or complaint | 34, 37, 38 | Auditor, authorised officer, Deputy or Assistant Charity Commissioner |
| Explanation called for | 38 | Deputy or Assistant Charity Commissioner |
| Inquiry, findings and report | 39 | Deputy or Assistant Charity Commissioner |
| Determination of loss and liability, or remand | 40 | Charity Commissioner |
| Direction to surcharge | 41 | Charity Commissioner |
| Recovery of sums due | See Sections 76 and 77 | As provided there |
Read the process in order: Sections 38 and 39 and Section 40. Recovery of sums due under the Act is dealt with in section 77, summarised in the article linked above.
Surcharge and the general law of trustee liability
The Indian Trusts Act, 1882 has its own rules on a trustee's liability for breach of trust, in a different Act that does not apply to public charitable or religious trusts; see liabilities of trustees for breach of trust for that Act. Section 41 is the Maharashtra Act's own mechanism for public trusts: an administrative order by the Charity Commissioner on a finding of loss, with no suit needed. It does not stop a suit for accounts under Section 50; indeed section 40(2) says the Charity Commissioner may drop the matter where such a suit has been instituted.
Practical points for a person facing surcharge
- Answer the explanation notice fully. The surcharge rests on the findings made after it.
- Appear at the hearing before the Charity Commissioner and put in documents on the amount of loss and on responsibility.
- Check the order for the amount, the person and the reasons.
- Take advice at once on any remedy, because the order is final and conclusive on its face.
- Do not ignore it: the Act provides for recovery of sums due.
Illustration. The Charity Commissioner decides after the section 40 process that a manager of a Latur hostel trust caused a loss by diverting fee collections. He directs that the amount be surcharged on the manager. The manager is a person connected with the trust although he is not a trustee; the trustees are not surcharged because they were not found responsible. If the manager wants to challenge the order, his counsel will have to examine the remedies available outside the section, since the order is final and conclusive under sub-section (2).
Need help with a surcharge proceeding?
If a surcharge is proposed or has been ordered, our team can help with the reply, the evidence on loss and responsibility, and the available remedies. Contact us for legal dispute resolution support.
Key takeaways
- The Charity Commissioner may direct that the amount of loss a person is liable to pay to the trust be surcharged on that person (s.41(1)).
- The person must be "connected with the trust"; the words replaced "any person" in 1971.
- The order is final and conclusive (s.41(2)); the words referring to section 72 were removed by Mah. 55 of 2017.
- The liability decision comes first, under the process in sections 38 to 40.
- Section 41 is the Maharashtra Act's mechanism; the Indian Trusts Act, 1882 is a different law.
Read next
- Section 40: the Charity Commissioner's orders on the report
- Sections 38 and 39: explanation and report to the Charity Commissioner
- Sections 76 and 77: recovery of sums due
- Liabilities of trustees for breach of trust (Indian Trusts Act)
Disclaimer: Based on the Maharashtra Public Trusts Act, 1950 as modified up to 19 December 2018 in the official text of the Law and Judiciary Department, Government of Maharashtra, as consulted on 3 October 2026. Maharashtra amended the Act again in 2019, 2020, 2024 and 2025; the current text, the Maharashtra Public Trusts Rules and the Charity Commissioner's circulars should be checked. This article is general information, not legal advice; check the official text before acting.