-: 1 :- wp-7343/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7343 OF 2011 Panchayati Akhada Shri. Niranjani Goswami Nagar Sansyasi, Tribakeshar, Dist : Nahsik. ..Petitioner. Versus Joint Charity Commissioner, Nashik. ..Respondent. Mr. Venkatesh A. Shastry for the Petitioner. Ms. P. S. Cardozo, AGP. Coram : RANJIT MORE, J. Date : September 9, 2011. P. C. : 1. Rule. Rule made returnable forthwith. By the consent of parties taken up for hearing and final disposal. 2. Heard learned counsel for the respective parties. 3. The petitioner by filing this writ petition under Article 227 of the Constitution of India, challenges the legality, validity and propriety of the impugned order passed by respondent no.1-Jt. Charity Commissioner, whereby the petitioner’s application under Order-VI Rule-17 of the Code of Civil Procedure, 1908 [for short “the CPC”] to amend the srp -: 2 :- wp-7343/11 original application under section 36(1)(a) of the Bombay Public Trusts Act, 1950 [for short “the BPT Act”] came to be rejected. The brief facts giving rise to the present petition are as follows :- . The petitioner is a public trust registered under the provisions of the BPT Act. The petitioner filed Enquiry Application No. 18 of 2009 with the respondent under section 36(1)(a) of the BPT Act to grant sanction to sell the property admeasuring 2-H and 56-R from Gat No. 198-E, totally admeasuring 12-Hectares in favour of Dipak Ladda, Manik Mundada and Laxmikant Thete, they being highest bidders. This application came to be rejected by the respondent on various grounds and one of the grounds was that the property sought to be sold was received by the trust under a gift deed, however, documentary evidence is not filed on record to show that the gift was unconditional. 4. The petitioner challenged the rejection of approval by filing writ petition in this Court, being Writ Petition No.6021 of 2010. The petitioner pointed out to this Court that the property which is sought to be sold out is not acquired under -: 3 :- wp-7343/11 gift deed, however, statement to that effect in Enquiry Application came to be made erroneously. Learned Single Judge of this Court disposed of the said writ petition by order dated 23/12/2010. Order of the Jt.Charity Commissioner, rejecting the petitioner’s application under section 36(1)(a) of the BPT Act was quashed and set aside. The matter was remanded to respondent no.1 to decide the petitioner’s application afresh. The petitioner was also granted liberty to file affidavit-in-support of application, additional affidavits and additional documents. What is important to note is that in paragraph no. 7 of the said order, learned Single Judge has observed that an opportunity deserves to be granted to the petitioner to establish that the property in question is not acquired by way of a gift. 5. In terms of the order of the High Court, the petitioner preferred an application under Order-VI Rule-17 of CPC to delete reference to the gift deed of property, which was to be sold and instead the petitioner asserted that the property belongs to the petitioner–Trust since prior to the inception of organisation of Kumbhamela and Kumbhamela is being -: 4 :- wp-7343/11 organised since prior to the thousand of years and record of these years is not available either with the Trust or Government. It is further avered in the said application that however the Government record of the year 1922 shows that the said property is in possession of the trust by way of ownership. As stated above, this application is rejected by the impugned order. 6. The said application is rejected on the following grounds: (a) that, the property is in the name of Parmanand Guru Niranjandev and therefore it is the private land of Parmanand and his forefathers, and, (b) that the contentions made in the application are baseless. 7. Both the reasons given by the Jt. Charity Commissioner for rejecting the application, to my mind, cannot be sustained. Parmanand Guru Niranjandev was the chief of Akhada at the relevant time and the petitioner claims to be owner of the property which is to be sold. The second ground on which the petitioner’s application is rejected is that the application is baseless. It is now well settled principle of law -: 5 :- wp-7343/11 that merits of the amendment application cannot be gone into. It is for the plaintiff to prove the contention at the time of hearing on main application under section 36(1)(a) of the BPT Act. The Court has to see whether the amendment is consistent with the original pleadings and same is not contrary to the contentions already raised. In this regard it be noted that in the earlier writ petition before this Court, the petitioner has made a statement that “that the statement in his application under section 36(1)(a) of the BPT Act that the property which is to be sold is the gifted property, is erroneous.” This statement is accepted by this Court and thereafter the petitioner was given liberty to file affidavit-in- support of his application before the Jt. Charity Commissioner. In pursuance of this liberty, the petitioner has filed application for amendment. The petitioner’s application for amendment could not have been rejected on the grounds mentioned in the impugned order. As stated earlier, merits of the amendment application also cannot be gone into. The Court has to adopt liberal approach in the matter of grant of amendments. In these circumstances, the impugned order deserves to be quashed and set aside. The petition is -: 6 :- wp-7343/11 accordingly disposed of by passing following order. -: O R D E R :- The impugned order dated 4/7/2011 passed by the Jt. Charity Commissioner in Enquiry Application No. 18 of 2009 is hereby quashed and set aside. Petitioner’s application dated 25/4/2011 for amendment is allowed. Petitioner shall carry out necessary amendments within a period of two weeks from today. (RANJIT MORE, J.)