1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7417 OF 2009 Charu Kishor Mehta .. Petitioner Vs 1. Joint Charity Commissioner, Greater Bombay Region, Mumbai, 2. Chetan Prabodh Mehta, 3. The State of Maharashtra. ..Respondents. Mr. Mr Aspi Chinoy, Senior Counsel, Shri R.Singh with Pranav Sampat with Mr Rohan Kelkar, Hetal Thakore i/b M/s Thakore Jariwala & Associates, for the petitioner. Mr. S.G.Anney. Senior Counsel, with Mr Prateek Sekseria with D.K.Sinha & Mr Thomas T. K. And Mr Jay Kansara i/b M/s Paras Kuhad & Associates, for Respondent no.2. CORAM : D.B.BHOSALE, J. DATE : 09/09/2009 PC: 1. This writ petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 20.8.2009 passed by the Joint Charity Commissioner, Greater Mumbai Region, Mumbai, on the application at Exhibit 54 in Application No.15 of 2008. By this order, the Joint Charity T 2 Commissioner has simply adjourned the hearing on the application at Exhibit-54 observing that “the purpose behind interrogatories as claimed in the application can be served even if the application is considered at a later stage. It is not necessary to stay the hearing on charges and to give preference to this application.” 2. The petitioner is a permanent trustee for life of the Lilavati Kirtilal Mehta Medical Trust (for short, “the Trust”). Respondent no.2, according to the petitioner, is a surrogate trustee of the Managing Trustee, Vijay Mehta. Respondent no.2 has instituted Trust Charity Application No.15 of 2008 under section 41D of the Bombay Public Trusts Act, 1950 (for short, “the Act”) against the petitioner. The application at Exhibit 54, in Trust-Charity Application No.15 of 2008, has been filed by the petitioner under the provisions of Order 11, rule 1,2 and 8 read with Order 14, rule 3 of the Code of Civil Procedure, 1908 (for short, “CPC”). In the said application, the petitioner sought leave of the Joint Charity Commissioner to deliver interrogatories for examination of respondent no.2, i.e. the applicant in Application No. 15 of 2008. In that application, it was alleged that, Charity Application No.15 of 2008, as filed, is extremely vague, ambiguous and smacks malafide. It does not 3 sufficiently disclose the nature of case against the petitioner. In view thereof, the petitioner sought to deliver the interrogatories which, according to the petitioner, bear a very crucial connection with the matter in issue in the original proceedings and a vital link to respondent no.2’s case therein. The petitioner, therefore, contended that it would not be appropriate to frame the charges unless the interrogatories are answered by respondent no.2. 3. Mr Chinoi, learned senior counsel appearing for the petitioner, submitted that if the interrogatories are allowed to be delivered and are answered by respondent no.2 that would facilitate the petitioner in knowing fully the case against her and in proving her own pleaded case and her defence. He further submitted that answers to the interrogatories would go to the root of the dispute between the parties and would assist the Joint Charity Commissioner in framing charges and determining real matter in issue. In other words, he submitted that it would expedite adjudication of the original proceedings and would also save sufficiently cost and time, which would otherwise incur in adducing evidence in the matter contained therein. Mr Chinoi further submitted that framing of charges is in the nature of framing issues under Order 14 of CPC and, therefore, 4 answers to the interrogatories are material. Mr Chinoi further submitted that answers to the interrogatories, in the present case, will serve in destroying the case of respondent no.2 against the petitioner. In support of his contentions, he placed reliance upon the Judgment of this Court in Sona Senroy Vs Amit Senroy, AIR 1998 Bombay 302. Lastly, he submitted that it would not be proper to frame charges unless all the interrogatories are answered by respondent no.2. 4. On the other hand, Mr, Anney, learned Senior Counsel for respondent no.2, after inviting my attention to section 73 of the Act read with rule 7 and section 76 read with section 2(4) of the Act, submitted that the legislature intended to exclude, by using specific language, CPC per se, and made restricted provisions applicable to the proceedings pending before the Charity Commissioner. In other words, he submitted, that the provisions contained in Order 11 of CPC, are not applicable to the proceedings before the Charity Commissioner. He then submitted that even if it is assumed that the provisions of Order 11, are applicable to the proceedings before Charity Commissioner, it is pertinent to note that in the present case, the application at Exhibit-54 filed by the petitioner has not been rejected so far and the Charity Commissioner has simply 5 adjourned the hearing. Mr Anney, on instructions, submitted that it is always open to the Joint Charity Commissioner, while hearing the parties on charge, if he finds it necessary to issue direction to the respondents to answer the interrogatories. He made this submission reserving the right of the respondent to oppose the application at Exhibit-54 on all grounds available in law. 5. The question raised for the consideration of this court by Mr Chinoi, learned senior counsel for the petitioner is where, in the proceedings under section 41D of the Act, prior to framing of charges, an application is made by a party for leave to deliver interrogatories to the other side, can the Charity Commissioner proceed to frame such charges without first deciding the said application. 6. Before I deal with the submissions advanced by the learned senior counsel for the parties, it would be relevant to make reference to Writ Petition No. 4623 of 2009, that was filed by the petitioner in this Court. This writ petition was directed against the order dated 23.4.2009 passed by the Joint Charity Commissioner, dismissing the petitioner’s application seeking dismissal of the application filed by respondent no.2 under 6 section 41D of the Act, on various grounds. The Joint Charity Commissioner rejected the said application vide order dated 23.4.2009 holding that the petitioner would get an opportunity to explain her stand at a later stage. The writ petition was ultimately rejected vide order dated 24.6.2009 directing the Joint Charity Commissioner to consider whether charges should be framed against the petitioner after taking into account her reply to the application under section 41D. The order of the learned Single Judge was challenged by way of Letters Patent Appeal No.180 of 2009. The Letters Patent Appeal was also disposed of vide order dated 10.8.2009. While disposing of the Letters Patent Appeal, the Division Bench in paragraph 3 of the order, made the following observations. “We have also perused the order of the learned Single Judge and we do not find any ground at this stage to interfere with the same. However, to avoid any confusion, we direct that the Charity Commissioner shall hear the parties, peruse the records made available to him and pass a reasoned order whether charge is to be framed in the matter or not and if the Charity Commissioner comes to the conclusion that charge is to be framed against the appellant, he shall give reasons for framing each of the charges. The Charity Commissioner would be at liberty to either frame or not to frame charge, as he deems fit and proper in the facts and circumstances of the case and after he passes the order, any party aggrieved by such order wold be at liberty to take any 7 appropriate remedy available to him/her in law. With the above observations, the letters patent appeal is disposed of.” 7. It is against this backdrop, I have heard learned senior counsel for the parties and perused the material to which my attention was specifically drawn and more particularly to the impugned order, the application at Exhibit-54 with the interrogatories at Schedule-I, the order passed by the learned Single Judge dated 24.6.2009 rejecting Writ Petition No.4623 of 2009 and the order passed by the Division Bench dated 10.8.2009 disposing of the Letters Patent Appeal No.180 of 2009. Upon perusal of the interrogatories, at this stage, I do not wish to express any opinion on the question as to whether it is proper for the Charity Commissioner to frame charges without issuing direction to respondent no.2 to answer the interrogatories. In other words, it is not possible to assume that answers to the interrogatories alone will facilitate the Joint Charity Commissioner to frame charges and to determine the real matter in issue. In my opinion, the Joint Charity Commissioner, who is seized of the matter, should be allowed or given a free hand to decide whether answers to the interrogatories are necessary before framing charges. The 8 Charity Commissioner, as directed by the Division Bench vide order dated 10.8.2009 in the Letters Patent Appeal, will have to hear the parties, peruse the records made available to him and pass a reasoned order whether charge is to be framed in the matter or not and if he comes to the conclusion that charge is to be framed against the petitioner he shall give reasons for framing each of the charges. It is not possible to assume, at this stage of the proceedings, that charges will be framed against the petitioner. It is open to the Charity Commissioner to either frame or not to frame charges and in the event the charges are framed, the petitioner will have an opportunity to take appropriate remedy available to her against framing of the charges. I have perused the interrogatories. Though it is possible to express, prima facie, opinion on the question raised by the petitioner for my consideration, in view of the peculiar facts and circumstances of the case and having regard to the interrogatories, I leave it to the Charity Commissioner to decide whether he can proceed to hear parties on the charges without first deciding the application at Exhibit-54. In the course of hearing on the charge, if the Charity Commissioner finds that answers to the interrogatories are necessary, it would be open to him to issue such directions to respondent no.2, after giving an opportunity of being heard to the parties. At this stage, I am 9 not in favour of issuing such direction to respondent no.2. In my opinion, no prejudice would cause to the petitioner since it is open to the petitioner to take any appropriate remedy available to her in law against framing of charges against her. However, I observe that if the Charity Commissioner frames charges, without issuing directions to respondent no.2 to answer the interrogatories, he shall endeavour to record short reasons, as to why did he not find it necessary to issue such directions. In this view of the matter, all contentions of the parties, insofar as the application at Exhibit-54 is concerned, are kept open to be raised, considered and dealt with by the Charity Commissioner at appropriate stage. The writ petition, accordingly, stands disposed of. As requested by the learned counsel for the parties, hearing on the application at Exhibit-54 is expedited. (D. B. Bhosale, J.)