Kambli 1 wp1140.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1140 OF 2010 ... Dinshaw Rusi Mehta and ors. ..Petitioners v/s. State of Maharashtra & ors. ..Respondents ... Mr.Aspi Chinoy, Sr.Counsel with Mr.Percy Gandhi & Ms.Shirzan Pochkhanwala for the Petitioner. Mr.D.A.Nalawade, GP for Respondents Nos.1 & 2. Mr.Anand Grover with Ms.Nilima Putta, Mr.Nilesh Ukey i/b Prakash Mahadik for Respondent No.5. ... CORAM: D.K.Deshmukh & N.D.Deshpande,JJ DATED: 29th September, 2010 P.C.: 1. Rule. Returnable forthwith. Heard Kambli 2 wp1140.10 finally by consent of parties. 2. The Petitioners, who are trustees of a Public Trust registered under the Public Trust Act by name “Parsi Panchayet” of Mumbai, have filed this petition challenging the order dated 8-4-2010 passed by the Charity Commissioner, Maharashtra State in Misc.Application No.68 of 2009. 3. The facts that are relevant are that the Charity Commissioner on 13-7-2009 directed that Special Audit of the accounts of the Trust is to be conducted from the year 1998 to 2009 and that he has decided that the audit fees shall be 0.90% of the annual income of the Trust. The Trust by letter dated 20th July, 2009 addressed to the Deputy Charity Commissioner pointed out that the annual accounts of the Trust are regularly Kambli 3 wp1140.10 audited by the Firm of reputed Chartered Accountants , and therefore, there is no necessity of ordering any special audit. It was pointed out that if the special audit as per the order of the Charity Commissioner is to be conducted and the auditor is to be paid at the rate specified in the order of the Charity Commissioner, then an amount of Rs. 1,20,00,000/- will have to be paid towards audit fees. It appears that the order of the Special audit was made because of some reports submitted to the Charity Commissioner. Therefore, the Petitioners applied for supply of copy of that report. The Charity Commissioner refused to supply copy of that report on the ground that report is secret and because of the provisions of the Oficial Secret Act that report cannot be made available. The Trustees of the Trust, therefore, submitted an application to the Kambli 4 wp1140.10 Government of Maharashtra making a grievance against the order of the Charity Commissioner ordering special audit. They also pointed out that huge amount will be required to be paid as audit fees. It was also pointed out that copy of the report is not supplied. On the basis of that application the State Government called for a report from the Charity Commissioner. 4. At this juncture the Respondent No.5, who, it appears, had made an application for ordering special audit filed an application which was registered as Misc.Application No. 68 of 2009 praying that the Charity Commissioner should make a reference under sub-section 2 of Section 15 of the Contempt of Courts Act to this court under the Contempt of Courts Act. In this application, the Respondent No.1 was the State Government, Kambli 5 wp1140.10 the Respondent No.2 was the Minister, who called for the report, Respondent No.3 was the Desk Officer who sent the communication to the Charity Commissioner calling for the report, Respondent No.4 was the Trust and the Respondents Nos.5 to 11 were trustees of the Trust. On that application on 12-10-2009 the Charity Commissioner made following order, “Keeping the point of tenability, open against Respondent No.2 and 3, application be registered as Misc.Application. And issue notice to Respondents Nos.5 to 11.” 5. On being served with the notices, the Petitioners who are original Respondents Nos. 5 to 11 before the Charity Commissioner filed an application raising objection to the tenability of the application before the Charity Commissioner; mainly on two grounds, first ground is, if calling for the report from the Charity Commissioner amounts to Kambli 6 wp1140.10 criminal contempt then the report has been called for by the Respondents Nos.2 & 3 and if they are not to be proceeded against, then the Petitioners who had merely made an application before the State Government cannot be said to have committed any contempt. Second ground was that the proceedings before the Charity Commissioner related to an order directing special audit of the Public Trust and therefore, they are not judicial proceedings and therefore, there is no question of any criminal contempt being committed by anybody in relation to those proceedings. That application has been decided by the Charity Commissioner by order dated 8-4-2010. It is that order which is challenged in this petition. 6. We have heard the learned Counsel appearing for both sides. The learned Kambli 7 wp1140.10 Government Pleader submits to the order that this court may make. The learned Counsel appearing for Respondent No.5 relied on the judgment of the Supreme Court in the case of K.Shamrao and ors. v/s. Asst.Charity Commissioner, (2003) 3 SCC 563, to contend that the Charity Commissioner has been held to be the court for the purpose of Contempt of Courts Act and therefore, even the proceedings initiated by the Charity Commissioner for special audit amounts to quasi-judicial proceedings and therefore, proceedings under the Contempt of Courts Act in relation to those proceedings are maintainable. 7. Perusal of the order of the Charity Commissioner, which is impugned in this petition shows that even according to the Charity Commissioner the proceedings for Kambli 8 wp1140.10 initiation of special audit of a registered public trust are basically administrative proceedings. But according to him, because in this case special audit was ordered on the basis of the application made by the Respondent No.5, they become quasi-judicial proceedings and as the Petitioners have tried to interfere with those proceedings, it may amounts to criminal contempt. 8. The learned Counsel appearing for the Respondent No.5 referred to the provisions of the Contempt of Courts Act and submitted that considering that whether to order special audit or not is in the discretion of the Charity Commissioner and for that purpose he has to form an opinion , it is a quasi- judicial function. In our opinion, however, even assuming that proceedings for ordering special audit are quasi-judicial function, Kambli 9 wp1140.10 still if somebody makes an attempt to interfere with those quasi-judicial proceedings, it will not amount to criminal contempt. The term “Criminal Contempt” is defined by Section 2(c) of the Contempt of Courts Act. It reads as under: 2(c)”Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter of the doing of any other act whatsoever which- (i)scandalises or tends to scandalise, or lowers or tends to lower the authority or, any Court, or (ii)prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or (iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administrations of justice in any other manner; Perusal of the above provision shows that the act complained of must interfere or tend to interfere with the judicial proceeding and therefore, even assuming that proceedings are Kambli 10 wp1140.10 quasi-judicial, the action of the Petitioners would not amount to contempt of court, even assuming that it is unauthorised. Perusal of the provisions of the Public Trust Act, however, shows that the State Government is not powerless in calling for reports from the Charity Commissioner in relation to the administrative function of the Charity Commissioner. Perusal of the provisions of Section 3 of the Public Trust Act shows that appointment of the Charity Commissioner is made by the State Government. Section 3 of the Act also vests power in the State Government to make such general or special orders in relation to administration of the provisions of the Act. Section 6A of the Bombay Public Trust Act lays down that the Charity Commissioner and his sub-ordinate officers shall be the servants of the State Government and even their conditions of Kambli 11 wp1140.10 services are to be determined by the State Government. Therefore, the State Government may not be in a position to issue direction in so far as the judicial powers conferred on the Charity Commissioner by the Act are concerned, however, so far as the administrative powers are concerned, the State Government definitely would be competent to call for report from the Charity Commissioner. Therefore, the action of the State Government of calling for the report from the Charity Commissioner cannot be termed as totally unauthorised or an action without authority of law, and therefore, in our opinion, it can never amount to contempt of the court. Even assuming that the Charity Commissioner has been held to be `court’ by the Supreme Court by its judgment in the case K.Shamrao, it does not mean that the Charity Commissioner, in exercise of every functions Kambli 12 wp1140.10 conferred on it by the Act, acts as a court. There are certain functions which are essentially administrative in nature. In our opinion, therefore, when the Charity Commissioner exercises those administrative powers, he cannot be regarded as a court. It is further to be seen that it was specifically urged before the Charity Commissioner that if he is not proceedings against the Minister, then he cannot proceed against the Petitioners. That contention has not been decided by the Charity Commissioner. In our opinion, as the Charity Commissioner had decided that the action of the State Government of calling for the report from him does not amount to interference with the course of justice. We fail to understand how the act of the Petitioners of making an application to the State Government would amount to interference with the course of Kambli 13 wp1140.10 justice. Looking at the matter from any point of view, in our opinion, the order cannot be allowed to stand, it has to be set aside. 9. In the result, therefore, petition succeeds and is allowed. The order impugned in the petition is set aside. Proceedings in Misc.Application No.68 of 2009 on the record of the Charity Commissioner stands disposed of. (D.K.Deshmukh, J.) (N.D.Deshpande, J.)