1 1063.09-wp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1063 OF 2009 Dr.Haniraj L.Chulani ..Petitioner Vs. Radhibai Watumul Chest Hospital & Ors. ..Respondents Mr.C.G.Gavnekar i/b. Navdeep Vora & Co. for petitioner. Mr.J.P.Cama, Senior Advocate with Mr.Jayesh Desai i/b. Desai & Desai Associates for respondent Nos.1 and 2. Mr.V.B.Naik i/b. Naik, Naik & Co. for respondent No.3. Mr.Milind More, AGP for respondent No.4 CORAM : D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATE : DECEMBER 7, 2010 P.C. The petition is not on board for final hearing. By consent of parties, it is taken up for final hearing. 2. By this petition, the petitioner challenges the order dated 23rd April, 2009 whereby the Joint Charity Commissioner has granted sanction under Section 36(1)(a) of the Bombay Public Trust Act,1950 to 2 1063.09-wp the Trustees of Radhibai Watumull Chest Hospital, Mumbai to sell the immovable property of the Trust for consideration of Rs.25 crores. The learned Senior Counsel appearing for the petitioner states that this order is challenged on two grounds: (1) according to the petitioner, under the Indenture dated 4th October, 1957, permission of the Government of India was necessary to be obtained before selling the property, the Trustees are transferring the property without obtaining that permission and; (2) by transfer of the property of the Trust, the very purpose of the Trust is defeated. 3. So far as the first aspect of the matter is concerned, it is common ground before us that for the reason that the property is transferred without permission of the Government of India order has been made by the Additional Chief Secretary, Relief & Rehabilitation on 19th December, 2009 revoking permission which was initially granted by the Settlement Commissioner 29th May, 2009 and that order of the Additional Chief Secretary revoking the permission is a subject matter of challenge in Writ Petition Nos.681 of 2010 and 9854 of 2010. 4. Obviously therefore, the aspect whether the transfer can be effected by the Trust of the property without permission of the Government of India is to be examined in the above referred two petitions and therefore, it cannot be examined in this petition. 5. So far as the aspect that the Charity Commissioner while granting sanction under Section 36 has not considered that the object of the Trust 3 1063.09-wp itself will be defeated by grant of sanction for transfer of the property is concerned, it appears that the Trust had initially decided to purchase a land in Western Sub-urban of Mumbai for construction of a new hospital however, now, it is apparent from the affidavit filed in Notice of Motion No.478 of 2010 that the Trust intends to invest the money in a hospital at Mount Abu. In our opinion, the question whether even after the change in the decision of the Trust it can be said that the purpose of the Trust is still served and fulfilled, is the matter to be examined by the Charity Commissioner because it is purely a question of fact. In our opinion, therefore, the following order would meet the ends of justice. a) The parties shall appear before the Joint Charity Commissioner on 20th December, 2010 along with a copy of this order and the Trust shall submit before the Joint Charity Commissioner the material that they want to produce in support of their claim that by transfer of the property the purpose of the Trust is still served. b) The Joint Charity Commissioner shall thereafter grant an opportunity to all other parties to submit their point of view on the material produced by the Trust. The Joint Charity Commissioner shall thereafter examine the issue whether by grant of sanction to transfer the land, the purpose of the Trust is defeated or not and in case the Joint Charity Commissioner comes to the conclusion that the grant of sanction is not in the interest of the Trust, the Joint Charity Commissioner shall be free to revoke the order made by 4 1063.09-wp him granting sanction. If on the other hand, he comes to the contrary conclusion, he may confirm the order granting sanction, but the Joint Charity Commissioner shall make that order as expeditiously as possible in any case within a period of eight weeks from 20th December, 2010. c) During the proceeding before the Joint Charity Commissioner, interim order passed by this Court which is presently operating in this petition shall continue to operate. It is clarified that before the Joint Charity Commissioner, the Trust shall be at liberty to challenge the locus of the petitioner Dr.Haniraj Chulani to object to the transfer of the property. d) All contentions available to both sides including the remedies are kept open. Petition stands disposed of. In view of the disposal of the petition, Notice of Motion does not survive. Hence, the same stands dismissed. (N.D.DESHPANDE,J.) (D.K.DESHMUKH,J.)