Gold Plaza Developers Pvt Ltd And 4 ... vs The State Of Maharashtra And 4 Ors
2022 Latest Caselaw 10120 Bom

                                                                      33.WPL.25843-22.doc

                PMB
                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION
         Digitally
         signed by
         PRADNYA

                               WRIT PETITION (L) NO.25843 OF 2022
PRADNYA  MAKARAND
MAKARAND BHOGALE
BHOGALE  Date:
         2022.10.06
         20:04:28
         +0530
                      Gold Plaza Developers Pvt. Ltd. and ors.    ..Petitioners
                            vs.
                      The State of Maharashtra and ors.           ..Respondents
                                                ------------
                      Mr. Shyam Mehta, Senior Advocate a/w Mr. Surel Shah, Mr.
                      Ish Jain, Kiran Jain, Dij Jain and Hita Chandwana i/b. Kiran
                      Jain and Company for petitioners.
                      Mr. Milind More, Additional Government Pleader for
                      respondent nos.1 and 5.
                      Mr. Aloukik R. Pai a/w Ms. Manasi Gupta for respondent
                      nos.2 and 3.
                      Mrs. Priya Ranade a/w Ms. Priynaka Sonawane for
                      respondent no.4.
                                                ------------

                                              CORAM : M. S. KARNIK, J.

                                              DATE       : OCTOBER 3, 2022.
                      P.C. :

1. Heard learned counsel for the parties.

2. The challenge in this writ petition filed under Article

226 of the Constitution of India is to an order dated

09.06.2022 passed by the Charity Commissioner. An

application No.175 of 2015 was made by the respondent

nos.2 and 3 under Section 41D and 41E of the Bombay

Public Trusts Act, 1950 (hereafter "the said Act", for short)

33.WPL.25843-22.doc

before the Charity Commissioner for removal of trustees

and the same is pending. In this application, an interim

application below Exhibit 32 was made by the respondent

nos.2 and 3 for witness summons to the petitioners under

Section 73 and 76 of the Maharashtra Public Trusts Act,

1950 read with Rule 7 of the Rules read with Section 43 of

the Presidency Small Causes Court Act, 1894 read with

Order XVI, Rule 1(2) of the Code of Civil Procedure, 1908.

3. Learned Senior Advocate for the petitioners invited my

attention to the averments made in the application filed

below Exhibit 32. Learned Senior Advocate also invited my

attention to the averments made by the respondent nos.2

and 3 in the Application No.175 of 2015 which is an

application for removing some of the trustees. It is the

contention of learned Senior Advocate that the Charity

Commissioner was not justified in allowing the application

for witness summons. According to him, there are several

proceedings pending in this Court in respect of the trust

property which is being developed by the petitioners. It is

pointed out that this Court by the judgment and order dated

33.WPL.25843-22.doc

06.01.2011 in Writ Petition No.4273 of 2010 has upheld the

order made by the Charity Commissioner under Section

36(1)(a) of the said Act for sale of the said property to the

petitioners and consequently the challenge to the

permission under Section 36(1)(a) of the said Act has been

dismissed. It is then contended that a suit being Suit

No.1008 of 2019 has been filed in this Court challenging the

conveyance on the allegation that the same is a fraudulent

transaction. Learned Senior Advocate submitted that in

such circumstances, when in the application made for

removal of the trustees, the main allegations are against

the petitioners about the fraudulent nature of the

transaction in respect of the property of the trust, the

Charity Commissioner at the instance of respondent nos.2

and 3 ought not to have issued witness summons to the

petitioners who are the purchasers and developers of the

trust property.

4. Mr. Pai, learned counsel for the respondent nos.2 and

3 argued in support of the impugned order. Mr. Pai

submitted that ultimately the enquiry is for removal of the

33.WPL.25843-22.doc

trustees. He submits that in course of enquiry for removal

of the trustees if it is necessary to examine the petitioners

who are parties to the transaction, it cannot be said that the

Charity Commissioner has committed any error in

summoning them.

5. In my opinion, having regard to the specific averments

made in the application No.175 of 2015 against the

petitioners and the application for summoning the

petitioners as witnesses, this is a fit case where the Charity

Commissioner should have at least granted an opportunity

to the witnesses to respond to the application, though they

are not made parties, before summoning them as

witnesses. Suffice it to observe that in the application made

for removal of the trustees, serious allegations are made

against the developers and therefore in such circumstances

it was necessary for the developers, who are now being

summoned as witnesses, to be heard by the Charity

Commissioner before passing any order on the application

Exhibit 32. An opportunity needs to be given to the

developers to point out the effect of the pending

33.WPL.25843-22.doc

proceedings and the prejudice thereon if any order is to be

made against them while summoning them as witnesses.

Consequently, the impugned order is set aside.

6. The petitioners undertake to appear before the

Charity Commissioner on 17.10.2022. A formal application/

undertaking may be filed bringing on record their objections

to the application at Exhibit 32. The Charity Commissioner

to hear the petitioners and then pass orders on the

application.

7. I may not be understood to have expressed any

opinion on the merits of the contentions raised by the

parties in this writ petition.

8. All contentions are kept open.

9. The application be decided on its own merits after

hearing the petitioners.

10. The Charity Commissioner is requested to hear the

application for witness summons within a period of 10 (ten)

weeks from 17.10.2022.

11. Writ Petition stands disposed of.

(M. S. KARNIK, J.)