dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.1393 OF 2009 PETITION NO.1393 OF 2009 PETITION NO.1393 OF 2009 Niket V. Mehta ...Petitioner vs. 1. Ld.Joint Charity Commissioner & 13 ors. ...Respondents Mr.Subhash Jha, with Mr.Dinesh Tiwari for the petitioner. Mr.P.P.Kakade, AGP for respondent no.1. Mr.Mahesh Jethmalani, Sr.Counsel with Mr.Raj Patel, with Mr.Rizvi Naser with Mr.H.N.Thakore i/b.M/s.Thakore Jariwalla & Co. for respondent no.2. Mr.Pravin Badheka, with Mr.Shane Mehernaaz Wadia, Sapeco i/b.M/s.Hariani & Co. for respondents 9 to 11. CORAM CORAM CORAM : : : ANOOP V.MOHTA,J. ANOOP V.MOHTA,J. ANOOP V.MOHTA,J. DATED DATED DATED : 3rd March, 2009. : 3rd March, 2009. : 3rd March, 2009. P.C.: P.C.: P.C.: Heard finally at the admission stage itself by consent. The petitioner who is also suspended as a member of the trust by an impugned order dated 10.10.2008 passed by the Joint Charity Commissioner, Greater Mumbai Region, Mumbai under Section 41-D of the Bombay Public Trusts Act,1950 (BPT Act) preferred this petition. 2. By an order dated 03.06.2008, after hearing the parties/other trustees, considering even the reply filed by the petitioner, Exhibits 82, 86 to the application under Section 41D of the BPT Act filed by the respondents, as many as 9 charges have been ( 2 ) framed. Based upon which the impugned order of suspension pending charges has been passed. 3. The order of framing charges was challenged by the affected trustees, in Writ Petition No.3849/2008 Writ Petition No.3849/2008 Writ Petition No.3849/2008 along with other companion matters. By order dated order dated order dated 11.07.2008, 11.07.2008, 11.07.2008, Hon’ble Hon’ble Hon’ble Mr.Justice Devadhar, Mr.Justice Devadhar, Mr.Justice Devadhar, after hearing parties, including the petitioner, has maintained the order. The charges so framed are intact till this date. 4. The submissions with regard to same order of suspension as raised by other trustees, have been considered and by an order dated 09.09.2008, Hon’ble an order dated 09.09.2008, Hon’ble an order dated 09.09.2008, Hon’ble Mr.Justice Mr.Justice Mr.Justice Khanvilkar in Writ Petition No.5732/2008 Khanvilkar in Writ Petition No.5732/2008 Khanvilkar in Writ Petition No.5732/2008 again maintained the order. The L.P.As. against both these orders are not yet decided finally. 5. In the meantime as written statement was filed by other co-trustees but not the petitioner, though replied in detail to the application under Section 41 D of BPT Act, an application was filed to take written statement on the record. The same was rejected. 6. However, the Apex Court by order dated 16/01/2009 order dated 16/01/2009 order dated 16/01/2009 inin in S.L.P. S.L.P. S.L.P. No.138/2009-Niket V. Mehta v. Charuben K. No.138/2009-Niket V. Mehta v. Charuben K. No.138/2009-Niket V. Mehta v. Charuben K. ( 3 ) Mehta Mehta Mehta & ors. & ors. & ors. filed by the petitioner has passed the order as under: " Respondent No.1 was the applicant before the Joint Charity Commissioner in a proceeding under Section 41D of Bombay Public Trusts Act, 1950. Petitioner is the eighth respondent. The other respondents herein were co-respondents with the petitioner before the Joint Charity Commissioner. They are proforma respondents herein. . The grievance of the petitioner is that his written statement which was presented on 28th August 2008 should be taken on record before evidence is commenced. Learned counsel for the first respondent submits that sufficient time had been given earlier for filing the written statement and though the other respondents filed their written statement, the petitioner did not do so and, therefore, the order rejecting application of the petitioner to receive the written statement is just and proper and does not call for interference. . Time was extended till 28.4.2008 for the respondents to file their written statement. The petitioner has explained the subsequent delay. Having regard to the nature of dispute and background of litigation, we are of the view that the request of petitioner for permission to file written statement ought to have been accepted. . At this stage, the learned counsel for first respondent stated that as a condition for accepting the written statement, the petitioner should be asked to undertake to co-operate for the earlier disposal of the pending application. . In view of the above, the orders of the Joint Charity Commissioner and the High Court rejecting the request of petitioner to take the written statement on record, are set aside. The Joint Charity Commissioner shall receive the written statement of the ( 4 ) petitioner and then proceed with the evidence. He shall endeavour to dispose of the matter within six months. Nothing stated above shall be construed as a decision or observation on any other pending issues." 7. Therefore, in the above background and knowing the stage of the proceedings, with regard to Section 41 D orders, the Apex Court has permitted the petitioner to submit the written statement and to proceed further to lead evidence and directed that the matter be decided within six months. 8. There is nothing new to re-open the order of framing charges or suspension order in question. The submission to re-hear the charges is unacceptable/impermissible. The scheme and object of BPT Act is to protect the interest of the trust. If the trustees who act in a fiduciary capacity have more responsibilities and duties in the interest of the trust. If case is made out the Joint Charity Commissioner suo motu, under the BPT Act, can invoke these provisions and can pass appropriate order even without hearing any party. In the present case, the petitioner had not filed written statement at the relevant time, but definitely replied to the application and was heard along with other trustees. The Authority has passed the order after framing ( 5 ) charges, based on the material available on the record. There is no breach of principle of natural justice as tried to argue by the learned counsel for the petitioner in the above background. The charges so framed are interlinked and interconnected. All the trustees’ respective role’s, and allegation of inaction, negligence, breach of obligation/trust need to be decided finally as contemplated under BPT Act. 9. Therefore, the submission based upon authorities with regard to framing of charges to be treated like charges framed under Code of Criminal Procedure is also without substance. The charges framed after giving opportunity to the trustees is sufficient compliance under the BPT Act, specially when these charges have been already tested by all contesting parties/trustees and not disturbed by any Court, just cannot be allowed to re-open at the instance of the petitioner. 10. The Power of Attorney was given to the petitioner’s father. The petitioner, who after 2007 stayed away from India, has revoked the Power of Attorney after 2006 and now want to contest the charges and suspension order and wants to defend the charges of negligence/inaction again in this Writ ( 6 ) Petition which, in my view, is unacceptable. 11. In the writ petition filed by his father, the petitioner was the respondent. By detailed and reasoned order, the impugned order has been maintained. The petitioner now cannot show the ignorance of proceeding of writ petition and re-agitate the same points again. I see no reason to allow to re-agitate the issues which are settled by the order in two writ petitions, relating to same trust and trustees. 12. Resultantly, the writ petition is dismissed. No costs. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)