1 WP 7971.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7971 OF 2011 Khandesh College Education Society M.J. College Campus, Jalgaon Through its Secretary Vasant S/o Vasudeo Sarode Age : 76 Yrs., Occ. Legal practitioner R/o : 12, Pratapnagar, Jalgaon, District : Jalgaon. .... PETITIONER V E R S U S The Joint Charity Commissioner Nashik Region, Nashik Dist. Nashik. .... RESPONDENT Mr. V.D.Hon, Advocate for the petitioner. Mr. S.B.Pulkundwar, Asstt. Govt. Pleader for State. CORAM : S.V.GANGAPURWALA, J. JUDGMENT RESERVED ON : 24/11/2011 JUDGMENT PRONOUNCED ON : 08/12/2011 2 WP 7971.2011 - [ J ] JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The petitioner is an educational Trust registered under the provisions of the Bombay Public Trust Act [ Fort short, ‘ said Act ’ ]. It is averred that seventeen ( 17 ) different academic institutions are run by by the petitioner-Trust. The petitioner filed an application bearing No. 14 of 2010 before the Jt. Charity Commissioner, Nashik purportedly U/s 36-A ( 3 ) of the said Act seeking permission to borrow loan of Rs. 500 Lacks from Bank of Maharashtra for the purpose of construction of the school building of C.B.S.E. Course and Jr. College. The said application is rejected by the Jt. Charity Commissioner. The petitioner had also filed another application bearing No. 12 of 2011 for the same purpose. The said application was rejected as not maintainable. The petitioner has assailed the said orders in the present Writ Petition. 3. Mr. V.D. Hon, the learned counsel for the petitioner submits that after the earlier application was rejected, the said order was assailed in this Court by way of Writ Petition No. 6123 of 2011. This Court had remitted the matter back to the Jt. Charity Commissioner, Nashik. During 3 WP 7971.2011 - [ J ] the intergnum, the Misc. Application No. 12 of 2011 was filed. As the matter was remitted by this Court for consideration of Application No. 14 of 2010 afresh, the Application No. 12 of 2011 did not survive and the same as such was not maintainable. The learned counsel contends that even after remand of the matter by this Court, the Jt. Charity Commissioner has not taken into consideration the purpose for which the loan is required to be taken. The Jt. Charity Commissioner has gone on the premise that earlier also the loan was taken from the Bank of Maharashtra and repayment of half of the loan is still due. The learned counsel contends that in fact the instalments are paid in advance and the certificate to that effect is also issued by the Bank. There is not a single default. The learned counsel further contends that the purpose for which the loan was granted earlier was for the purpose of the construction of college building and purchase of computers, etc. The conditions are complied. The petitioner/institution has various colleges and engineering course is also available. The petitioner has its own engineers. As such, the work of construction is done departmentally and not through the builders. That saved the cost of construction. As such, the question of allotment of work to the out side agency by tender does not arise. The learned counsel contends that even the budget was submitted. The statements of accounts were submitted, but the same has not been considered by the Jt. Charity Commissioner. The loan has been 4 WP 7971.2011 - [ J ] sanctioned by the same bank from where the earlier loans were taken. If the repayment of the earlier loan would have been irregular, the Bank would not have sanctioned fresh loan. Even the Project Report is submitted. The Jt. Charity Commissioner was only required to satisfy about the purpose of loan, but the Jt. Charity Commissioner has not taken into consideration these aspects and on altogether different premise, has rejected the application. 4. The learned Assistant Govt. Pleader supports the order and contends that the Jt. Charity Commissioner has properly considered all the aspects and rightly rejected the application. 5. With the assistance of the learned counsel, I have gone through the application, the order and the documents produced on record. 6. While considering the application U/s 36-A ( 3 ) of the said Act, the authority is required to be satisfied about the purpose of the loan and if the sanction is being granted, the conditions and limits be imposed in the interest or the protection of the Trust. As is evident from the record the petitioner- Trust is running various faculties and courses, it is but natural that it would require funds. The letter issued by the Bank of Maharashtra dated 8/5/2010 shows that the loan has been sanctioned to 5 WP 7971.2011 - [ J ] the petitioner-Trust for the purpose of construction of building for Jr. College and C.B.S.E. School. The bank has sought security of the mortgage of land and building to be constructed with additional charge of the total land, so also other conditions. The Bank has also issued letter stating that earlier loans obtained in the year 2006 and 2007 are regularly operated and the instalments are paid in advance. This shows that record of the petitioner – Trust of maintaining the loan account is proper. The earlier loan was also obtained after taking necessary sanction from the office of the Charity Commissioner. 7. There is nothing on record to suspect bonafides of the petitioner. The petitioner is required to erect the building for C.B.S.E. School and the Jr. College. After remand also, the documents were filed and the Jt. Charity Commissioner was expected to go through the documents. It also appears that the Budget is submitted. The statements of accounts for three ( 3 ) years is also submitted. The Jt. Charity Commissioner in the order has stated that vide prayer clause B, the petitioner has stated that it should be allowed to lease the immovable property against the loan to the tune of Rs. 5 Crores. In fact, the petitioner is seeking permission to mortgage the property. In the sanction letter, the details of the property are given. The said sanction letter is on record. The petitioner has also filed on record the Project Report, which 6 WP 7971.2011 - [ J ] lays down as to how the repayment of loan would be made. 8. There is nothing on record to suspect that the petitioner has constructed the building and has not purchased the computers vide the earlier loan. The completion certificates are also produced on record, so also the statements of accounts showing expenditure of the earlier constructions. 9. In view of the above I do not see any impediment to allow Application No. 14 of 2010 filed by the petitioners. 10. As Application No. 14 of 2010 is being allowed, Application No. 12 of 2010 need not be considered and I pass the following order. The Application No. 14 of 2010 filed by the petitioner – Trust is allowed. The Trustees of the said Trust are permitted to take loan of Rs. 500 Lacks from Bank of Maharashtra, branch Jalgaon for the construction of Jr. College and C.B.S.E. School building by mortgaging new building to be constructed and by mortgaging the land owned by the Trust as stated in the letter of sanction issued by the Bank of Maharashtra dated 8/5/2010. In addition, the trustees are directed to give the personal 7 WP 7971.2011 - [ J ] guarantees for the said loan. The Bank shall issue the account payee cheques to the various agencies doing the work of construction from time to time. The trustees of the petitioner-Trust shall report the development of the work every six ( 6 ) months to the Jt. Charity Commissioner, Nashik along with details of the expenditure made and the repayments being made. 11. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 7971.2011 - [ J ]