1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3212 OF 2009 Kashyap Patel & Anr. ... Petitioners V/s. Shri Vile Parle Kelavani Mandal & Ors. ... Respondents Mr. S.G. Aney, Sr. Advocate, i/b. Ms. Gauri K. Jadhav for the Petitioners. Mr. P.K. Dhakephalkar, Sr. Advocate, i/b. Mr. S.K. Srivastav for Respondent No.1. Mr. Janak Dwarkadas, Sr. Advocate, with Mr. Sumit Raghav i/b. PDS & Associates for Respondent No.3. Mr. A.J. Patel, AGP, for Respondent Nos.4 and 5. CORAM : SMT. NISHITA MHATRE, J. DATE : 7TH MAY, 2009. P.C. : 1. The petitioners have approached this Court against the order of the Charity Commissioner dated 28th January, 2009 by 2 which the Charity Commissioner accorded sanction for the proposal of the Trust to borrow a loan from Dena Bank to the extent of Rs.145 crores for the construction and development of three projects undertaken by the Trust in the field of education. These projects are at Vile-Parle, Mumbai, Andhra Pradesh and Chandigarh. The Charity Commissioner has sanctioned this proposal on the following conditions : (a). This order shall remain valid for a period of one year. (b). The loan amount shall be utilized for the purposes mentioned in the order only. (c). The construction work shall be made as per the sanctioned plan and permission from the competent authority. (d). The trustees to make construction and purchases by issuing public notice calling upon tenders and to adopt a transparent procedure in awarding the tender. (e). All expenses above Rs.1,000/- shall be made by cheque. (f). This order is subject to any provisions or restrictions of any law in force. (g). Necessary change report after completion of the 3 construction should be submitted as required under Section 22 of the Bombay Public Trusts Act, 1950. 2. Being aggrieved by this order, the petitioners, who are the members of the Trust, have approached this Court. The learned Counsel appearing for the petitioners submits that the Charity Commissioner has while according approval under Section 36(A-3) abdicated the powers vested in him under the Bombay Public Trust Act. He submits that the Charity Commissioner is expected to independently apply his mind to the proposal submitted by a Trust for borrowing a loan from a Bank and to consider whether availing such a loan would be in the interest of the Trust. He urges that the Charity Commissioner must determine the necessity of the proposed borrowing. The learned Counsel for the petitioners points out that there are certain guidelines issued by the Government which the Charity Commissioner has to bear in mind while considering an application under Section 36(A-3) 4 of the said Act. He further points out that assuming the Charity Commissioner was right in observing that since the Bank had considered the statements of accounts of the Trust, it could be presumed that the Trust could repay the loan, the Trust had not placed any material on record before the Charity Commissioner to indicate whether the Bank has actually sanctioned the loan. He points out that except for the letter dated 14th November, 2008, there is no other material on record to indicate that the Bank had in fact sanctioned the proposal. 3. The learned Counsel for the respondent-Trust has submitted that it had placed sufficient material on record before the Charity Commissioner to indicate the reason for borrowing a loan from Dena Bank. It had filed various documents including the cash flow of the project, copies of the project agreements pertaining to the properties, copies of the plans of the proposed construction and copies of the various 5 resolutions and affidavits of the applicant regarding a compelling necessity for obtaining a loan. The Charity Commissioner has considered all these documents and has found that there was a compelling necessity to obtain a loan to further the educational activities of the Trust. 4. The submission of the learned Counsel for the petitioners is that the Charity Commissioner ought to have independently applied his mind to the documents rather than merely stating that “the Bank must have dealt with all these aspects while showing his willingness to expand loan facilities to the applicant-Trust”. 5. In my view, the Charity Commissioner in this case has committed no error by according sanction. He had sufficient material before him to consider whether such a loan should be availed and whether an unbearable burden would be caste on the Trust while repaying a loan. Although the Charity 6 Commissioner may not have expressed in detail the reasons for granting approval to the proposal of the Trust, it is apparent from the order that he has taken into consideration various documents which were on record and based his conclusion not only on those documents but on the fact that the Bank had shown its willingness to sanction the loan. 6. Apart from this, on an earlier occasion, the petitioners had objected to a loan being borrowed by the Trust. That matter travelled to the High Court after the Charity Commissioner had accorded sanction. By an order dated 15th September, 2005, in Writ Petition No.2468 of 2005, this Court has considered the submissions made by the learned Counsel for the petitioners which were similar to the submissions made before me. It would be appropriate to reproduce a relevant part of the order : “4. Mr. Aney, the learned counsel appearing 7 for the petitioners, contended that the Charity Commissioner has not applied his mind to the facts that the trust has not repaid the term loan of Rs.8 crores and has not taken into account the ability of the trust to repay the loan which it is being allowed to borrow. It is true, as contended, that he ability to repay has not been specifically sanctioned by the Charity Commissioner. Nothing is pointed out in law which requires the Charity Commissioner to specifically do so. However, it is clear that the Charity Commissioner has referred to an affidavit, copy of the Memorandum of Association, letter from the Bank, copy of the project report and estimate, audit reports, Bank settlement letter, resolution, etc., and specifically observed that he has gone through these documents. In these circumstances, I am of view that merely because the ability to repay is not specifically mentioned, this would not vitiate the order. There is no material placed on record by the petitioners to demonstrate any inability of the trust to repay. The argument is speculative and merely raises doubt. Further it appears that the Bank has already disbursed the loan to the extent of about Rs.11.70 crores as set out by the petitioners themselves in para 35 of the petition. It can be safely assumed that the Bank has examined the credit-worthiness of the respondent-Trust which, in fact serves several prestigious institutions in the city of Mumbai, which fact is not disputed on behalf of the petitioners.” 8 7. Thus, in my opinion, there is no error committed by the Charity Commissioner, nor is there is any perversity in its order which requires interference by this Court under Article 227 of the Constitution of India. The Petition is rejected. .......