-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.7593 of 2007 with Writ Petition No. 7594 of 2007 1. Shri Ajit Madhukar Chaubal and another ..Petitioners vs. 1. Shri Vasantrao Kalyanrao Vaid and others ..Respondents Shri B.D.Joshi i/b Smt.Gauri Jadhav for petitioners. Shri R.V.Govilkar for respondent nos.1 to 3, 5, 6, 8 to 14 and 16 and 17. Ms.V.S.Mhaispurkar, A.G.P. for respondent nos.21 and 22. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 13th February, 2008 13th February, 2008 13th February, 2008 P.C. P.C. P.C. 1. These writ petitions challenge the orders passed by the Joint Charity Commissioner on 21st July, 2007 and 30th August, 2007. 2. The petitioners in these petitions are claiming to be the Trustees of the Trust C.K.P.Sabha Trust, Dadar, Mumbai. That is a registered Public Trust and the parties do not dispute that the provisions of Bombay Public Trust Act, 1950 applies to the same. -2- 3. It is not necessary to refer to the activities of the Trust or the aims and objects thereof because it appears from the record that the petitioners and respondent nos.1 to 20 came to be elected on 10th March, 2002 for a period of 2001-04. Thereafter, allegation is that the previous Managing Committee did not hand over the charge in entirety in as much as the accounts duly audited were not forwarded to the new Board of Trustees. The accounts as forwarded were incomplete and had several defects and discrepancies. 4. It is alleged that Sarvashri A.R.Raje and Manohar Chitre were in the Managing Committee of the previous body. Shri Chitre was also elected in the fresh body but he resigned. 5. There is a property of the Trust at Dadar, Mumbai known as "C.K.P.Hall" which is in dilapidated condition. 6. However, it is alleged by the petitioners that instead of assisting the Trust in -3- reauditing the accounts and also repairing the structure/building the said Shri Manohar Chitre filed an application under section 41A of the B.P.T.Act, 1950 before the Charity Commissioner, Mumbai. The Charity Commissioner after receipt of this application passed an order on 29th July, 2006 directing Inspector in the office of Charity Commissioner to conduct enquiry and submit a report. The petitioners’ grievance is that they had no notice of these proceedings and, therefore, the order passed by the Deputy Charity Commissioner was in their absence and exparte. It appears that the inspector fowarded a report to the Charity Commissioner after his appointment in pursuance of the above order and the Charity Commissioner has passed further order on the said report. Upon that order and direction another order came to be passed by the Deputy Charity Commissioner directing the Managing Committee to hold Elections. 7. According to the petitioners, even this order passed on 12th September, 2006 was not communicated. The grievance is that all such proceedings as are referred to in the order dated 7th June, 2007 have been concluded behind the back of the petitioners. It appears that -4- the Joint Charity Commissioner initiated action under section 41 D of the Act. He issued show cause notice and called for explanation from the petitioners. However, it appears that the Joint Charity Commissioner suspended the Managing Committee and appointed the Inspector to discharge duties that are being performed by the Managing Committee. It appears that the petitioners had after the order passed on 21st July, 2007 suspending the Managing Committee and appointing the Inspector requested that the entire proceedings be recalled. The request was to set aside the exparte order and stay further proceedings under section 41D. This application has been rejected and that is how the writ petition no.7593 has been filed. 8. The other writ petition No.7594 of 2007 is impugning the order passed on 12th September, 2006 under Enquiry report no.14 of 2006. There the pleas raised are that the Deputy Charity Commissioner has committed an error in not hearing the Misc.Application No.24 of 2007 which was filed by the Trustees to set aside the order dated 12th September, 2006. Further, the order passed by him and which is sought to be recalled itself is exparte and Deputy Charity -5- Commissioner should have set it aside on the said ground. 9. Both the writ petitions were tagged together and placed before me. Shri Joshi appearing in support submits that now the electoral process is underway and all including the present petitioners and the original complainants are taking part in the same. Be that as it may, it is not shown to me that the proceedings before the Charity Commissioner would automatically come to an end merely because fresh electoral process is set in motion. The allegations pertain to the period when the petitioners and respondents supporting them were part of the Managing Committee. If law permits that their conduct during the earlier tenure would be made subject matter of enquiry, then, that enquiry must proceed. 10. However, there is substance in the grievance of Shri Joshi that the Deputy Charity Commissioner ought to have at the stage at which the matter was placed before him, heard all the concerned persons. He has not heard the petitioners and Shri Joshi prays for an opportunity to go before the Deputy Charity -6- Commissioner and apply for recalling or setting aside his earlier orders. Since the matter has culminated into initiation of proceedings for suspension and removal of the then Trustees, it would be just, fair and proper if the orders under challenge are set aside and the petitioners are allowed to participate in the enquiry under section 41A of the B.P.T.Act which has been initiated at the instance of Shri Chitre and Shri Raje. Accordingly, the orders dated 12th September, 2006, 21st July, 2007 and 30th August, 2007 are quashed and set aside. The matter is relegated to the stage of enquiry under section 41A of the Bombay Public Trust Act, 1950. Shri Joshi states that all concerned persons will appear before the Deputy Charity Commissioner on the date and time decided and stipulated by this Court. Shri Govilkar for the supporting respondents/other Trustees also states that no fresh notice be issued and the parties will appear before the Deputy Charity Commissioner on the date and time stipulated by this Court. 11. Accordingly, it is directed that the parties should appear before the Deputy Charity Commissioner on 4th March, 2008 at 11.00 a.m. -7- No fresh notice would be issued to any of them. The Deputy Charity Commissioner to give opportunity to not only to petitioners but to the original applicants Shri Chitre and Shri Raje and pass orders afresh without being influenced by the earlier orders and directions which have been issued by him so also by the Joint Charity Commissioner. All contentions of both sides in that behalf are kept open. Both petitions are disposed of. 12. Needless to state that setting aside and quashing of these orders does not mean that the Managing Committee has been reinstated. It is only because this Court while issuing notice had directed that the parties should maintain statusquo as prevailing on 11th October, 2007 and that order having been continued till date that I have permitted the above course of action. Further, if the petitioners are aggrieved by the fact that the Bank account is not allowed to be operated by them, then, it will be open for them to make an application to the Deputy Charity Commissioner to allow them to operate the said account only in order to meet the election expenses or reimbursing them in case such expenses are borne by the petitioners -8- or any of the existing trustees. Needless to state that the Deputy Charity Commissioner should pass such orders as are necessary and in the interest of justice with regard to financial operations of the society pending the enquiry before him. Such orders be passed by him after hearing all parties and without being influenced by the earlier directions. However, in so far as the application with regard to the election expenses and operating of the Bank account is concerned, the same can be preferred by the petitioners within a period of 10 days from today and such application be disposed of in the first instance on 4th March, 2008 and thereafter the main proceedings shall be taken up for disposal. Endeavour should be made to dispose them of as expeditiously as possible and within a period of three months from the date of appearance of the parties before him. 13. Civil Application No.16 of 2008 in W.P.No.7593 of 2007 does not survive in view of disposal of the petition and hence disposed of as such. -9- (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)