Manjiri Sharad Parasnis

Order - Status 5: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5870 OF 2018 Sunanda Suresh Bhandalkar Petitioner Vs. Deputy Charity Commissioner & Ors. Respondents --- Ms.Manjiri S. Parasnis for the petitioner. Mr.R.P. Kadam, AGP for the respondent no.1. CORAM : R.D. DHANUKA, J. DATE : 31st October 2018 P.C.: . Issue notice upon the respondent nos.2 to 6, returnable on 10th December 2018. Learned counsel waives service for the respondent no.1. In addition to the Court notice, the petitioner is permitted to serve the respondent nos.2 to 6 by private notice through Registered A.D./Speed post/ Fax/Courier/hand delivery in advance and file affidavit of service before the returnable date. Humdust is permitted. There shall be ad-interim relief in terms of prayer clauses (c) and (d). The petitioner is directed to convey this order to the respondent nos.2 to 6. Parties as well as the District Judge to act on the authenticated copy of this order. R.D. DHANUKA, J.

Order - Status 7: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 5870 OF 2018 Sunanda Suresh Bhandalkar ....Petitioner V/S Deputy Charity Commissioner And Ors. ....Respondent CORAM : K.K. TATED, J DATE : 23rd January, 2019 P.C. : Due to paucity of time, S. O. to 28/02/2019. Interim protection, if any, granted earlier and in force as on today, to continue till next date. ( FOR REGISTRAR JUDICIAL - I )

Order - Status 10: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 5870 OF 2018 Sunanda Suresh Bhandalkar ....Petitioner V/S Deputy Charity Commissioner And Ors. ....Respondent CORAM : K.K. TATED, J DATE : 28th February, 2019 P.C. : Due to paucity of time, S. O. to 01/04/2019. Interim protection, if any, granted earlier and in force as on today, to continue till next date. ( FOR REGISTRAR JUDICIAL - I )

Order - Status 12: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5870 OF 2018 WITH WRIT PETITION NO. 12574 OF 2018 Sunanda Suresh Bhandalkar ...Petitioner vs. Deputy Charity Commissioner and ors. ...Respondents. Ms. Manjiri S. Parasnis for the Petitioner. Ms. M.S. Bane, AGP. For Respondent No.1. Mr. Pratap Patil for Respondent Nos. 2 and 3. ---- CORAM : C.V. BHADANG, J. DATE : 16th DECEMBER, 2019 P.C. Both these petitions are between the same parties and involve connected questions and as such, they are being disposed off by this common order. Ramrajya Shikshan Sanstha is a trust registered under the Bombay Public Trust Act ("Act" for short). On 5.4.2001 the lenared Deputy Charity Commissioner, Pune in C.R. No.700 of 2000 had directed the parties to apply for settlement of a scheme for the said trust and accordingly, an Application No.77 of 2002 was filed. The 1st respondent by an order dated 4.4.2005 framed a scheme for the said trust. Respondent Nos. 2 to 4 filed Misc. Civil Application No.353 of 2005 purportedly under Seciton 72 of the Act challenging the said scheme. A similar application was filed by Sambhaji Ganpat Shirsat and others being Misc. Civil Application No.1039 of 2017. The learned District Judge, Pune by a common Judgment dated 28.6.2011 allowed both these applications and while setting aside the order dated 4.4.2005 remitted the matter back for fresh enquiry and decision under Section 50(A) of the Act to the 1st respondent. That was challenged by the trust along with Sambhaji Ganpat Shirsat in First Appeal No.1796 of 2011. Suresh Jagannath Bhandalkar also challenged the said order in a separate Appeal being First Appeal No.1797 of 2011 before this Court. This court by a common Judgment and Order dated 26.2.2014 allowed both these appeals placing reliance on the decision of this court in the case of Vasantrao Vishwanathrao Mane and others 2008(3) Mah.L.J. 242 and Gaffar Sattarkhan Pathan and others vs. Marutirao Tatyaba Sarpate and anr. 2012 (3) Mah.L.J. 211 holding that the District Judge acting under Section 72 of the Act had no power of remand. Consequently, M.C.A. No. 353/2005 and M.C.A.No.1039 of 2007 were restored to the file of the learned District Judge, for deciding the same within the confines of Section 72 of the Act. The said applications are pending before the learned District Judge at Pune. The applicants before the learned District Judge filed an application Exh.64 purportedly under Section 72(1)(A) of the Act, for production of additional evidence. It is contended that the main ground of challenge to the order dated 4.4.2005 is that a fraud has been played when the scheme was framed. In short, it was contended before the learned District Judge that except the first and last page of the scheme which was submitted before the first respondent, other pages were changed. By a result of which, an altogether different scheme, than what was proposed and envisaged came to be framed on 4.4.2005. In short, it was claimed that it is necessary to afford an opportunity to lead evidence to bring out the said alleged fraud. The application was opposed on behalf of the present petitioner on the ground that the same is not maintainable and no such claim for leading of additional evidence was made in the first round of litigation, prior to the order of remand. The first respondent by impugned order dated 6.1.2018 has allowed the application Exh.64 which order is subject matter of challenge in Writ Petition No.5870 of 2018. In pursuance of the said order, an affidavit in evidence of Mr. Dattatraya Bhosale came to be filed before the learned District Judge at Exh.95. The said witness was orally examined on 22.10.2018 and the cross examination of the said witness on behalf of the petitioner has been closed and by a separate order of even date the matter is fixed for final arguments. These orders are subject matter of challenge in Writ Petition No.12574 of 2018. I have heard Ms. Manjiri Parasnis, the learned counsel for the petitioner and Mr. Patil, the learned counsel for respondent Nos.2 and 3. I have also heard Ms. Bane,AGP. for the 1st respondent. Perused record. It is submitted by the learned counsel for the petitioner that the impugned order is not sustainable, inasmuch as the applicant in M.C.A. No.353 of 2005 and 1039 of 2007 had never made any request for leading additional evidence in the first round i.e. prior to the order of remand dated 28.6.2011. It is submitted that, in any event, the respondents (applicants) in the aforesaid two applications cannot now enlarge scope of challenge and permission to lead evidence in two applications would enlarge the scope of challenge. The learned counsel strenuously urged that, the impugned order is in excess of the jurisdiction conferred upon the District Judge particularly when order in First Appeal No.1796/2018 does not contemplate or envisage the leanred District Judge allowing any further/additional evidence. It is submitted that this court has restored the aforesaid two applications on the file of the lenared District Judge only on the ground that the learned District Judge had no power to remand, while entertaining a challenge under Section 72 of the Act. It is thus, submitted that the impugned order dated 6.1.2018 (below Exh.64) cannot be sustained. In so far as W.P. No.12574/2018 is concerned, it is submitted that if the order permitting additional evidence is set aside, there is no occasion for further evidence of Mr. Dattatraya Bhosale being led. In the alternative, it is submitted that if this court is not inclined to interfere with the order dated 6.1.2018 (below Exh.64) which is subject matter of challenge in W.P.No.5870/2018 then permission be granted to the petitioner to cross examine Mr. Dattatraya Bhosale. Mr. Patil, learned counsel for respondent Nos. 2 and 3 has supported the impugned order. It is submitted that, it has all along been the case made out by these respondents that there has been fraud played wherein except the first and last page, other pages of the scheme were changed, as a result of which the scheme different than the one which was envisaged came to be approved by order dated 4.4.2005 He submitted that there are wide powers conferred on the District Judge under Section 72 of the Act which includes power to allow additional evidence being led, particularly when District Judge has been held to have no power to remand the matter. For this purpose, reliance is placed on the decision of this court in the case of Vasantrao Vishwanathrao Mane (supra). Ms. Parasnis, the lenared counsel for the petitioner submitted that the case of Vasantrao Vishwanathrao Mane (supra) is distinguishable on facts and is not applicable. I have considered the rival circumstances and the submissions made and I do not find that any case for interference is made out in the impugned order dated 6.1.2018, which is subject matter of challenge in W. P. No.5870/2018. It has all along been the case of respondent Nos. 2 to 4 that there has been fraud played in the matter of framing of scheme on 4.4.2005 as except first and last page all other pages of the proposed scheme were changed. It is neither necessary nor appropriate to go into the question as to whether the case made out can be accepted or not, inasmuch as the said matter is still subjudise before the learned District Judge. Section 72 of the Act has since been deleted by Maharashgtra Act 55 of 2017 with effect from 10.10.2017. However, Section 33 of the Amending Act provides that nothing in the said amending Act shall affect applications and/or appeals pending before any civil court on the date of commencement of the said Amendment Act, 2017. There is no dispute about the said aspect. This is only mentioned to put the record straight. Section 72(1A) of the Act, as it stood prior to its deletion and which is relelvant for the purpose reads thus:- "(1A) No party to such application shall be entitled to produce additional evidence, whether oral or documentary, before the Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause the Court thinks if necessary to allow such additional evidence: Provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission. (2) The court after taking evidence if any, may confirm, revoke or modify the deciion or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances." It can thus be seen that the Deputy or the Assistant Charity Commissioner can in a given case admit evidence including the examination of any witness in the circumstances as set out in Section 72(1A) of the Act. This court in the case of Vasantrao Vishwanathrao Mane (supra) has held that the Deputy Charity Commissioner acting under Section 72 of the Act has specific powers only to confirm, revoke or modify the decision and there is no power of remand. It has been further held in this context that the specific power avaialble to the court under sub section (2) of Section 72 is inclusive of the power to take evidence if any. This court in Para 30 of the Judgemnt has held that, it is implicit that no special case is required to be made out as per the provisions of Order 41, Rule 27 of the Code of Civil Procedure in order to adduce additional evidence. It has further been held that this specific inclusion of the power to take evidence, will show that the intention of the Legislature is to avoid remand. As noticed earlier, it has all along been the case of repsondent Nos. 2 to 4 that there has been fraud played when the scheme was framed by order dated 4.4.2005 by change of certain pages and in that view of the matter, the lenared District Judge has thought it fit to allow such additional evidence being led. The record disclosed that, in pursuance of the said order an affidavit in examination-in-chief of Mr. Dattatraya Bhosale is already filed. The impugned order in my considered view is not amenable to interference particularly, when it does not result into any manifest injustice on the petitioner. The contention that such a request was not made prior to the remand, to my mind cannot be accepted. Only because at that point of time request was not made, cannot preclude the first respondent to permit such evidence being led, if a case to that effect is made out, In that view of the matter, W.P.No.5870 of 2018 has to fail. This takes me to WP No.12574/2018 in which the challenge is to the closure of the cross examination on behalf of the petitioner of Mr. Dattatraya Bhosale. In my considered view for a fair trial and in the interest of justice opportunity to cross examine Mr. Dattatraya Bhosale needs to be granted. The possibility of petitioner having failed to cross examine the said witness as petitioner was contemplating challenge to the order dated 6.1.2018 cannot be ruled out, However, once that challnge has failed, I find that such an opportunity needs to be granted. Ms. Parasnis, the lenared counsel for the petitioner at this stage submitted that, taking advantage of the order dated 6.1.2018, the petitioner may lead evidence which may not be strictly relevant for deciding Civil Misc. Application No.353/2005. The apprehension in my considered view is misplaced as the learned District Judge has to ensure that the evidence being led is strictly relevant for deciding the issues arising in Misc. Civil Applciation NO.353/2005 and such additional evidence shall only be restricted to the grounds of challenge as raised in Misc. Civil Application No.353/2005. In the result, following order is passed. ORDER a) Writ Petition No.5870 of 2018 is hereby dismissed. The order dated 6.1.2018 (below Exh.64) permitting to lead additional evidence is hereby confirmed. Needless to mention that such evidence shall be confined to the grounds of challenge as raised in Misc. Civil Application No.353 of 2005. b) Writ Petition No.12574 of 2018 is allowed. The impugned orders dated 22.10.2018 (below Exh.95) and below Exh.109 are herebty set aside. c) The petitioner is permitted to cross examine the witness Dattatraya Bhosale (Exh.95). d) In the circumstances, there shall be no order as to costs. e) At this stage Ms. Parasnis, the learned counsel for the petitioner prays for extension of interim relief for a period of four weeks. On hearing the lenared counsel for the parties, it is directed that ad-interim relief granted on 31.10.2018 in terms of prayer clause (c) and (d) shall continue to operate for a period of four weeks from today. [C.V. BHADANG, J.]

Order - Status 14: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5870 OF 2018 ….. Sunanda Suresh Bhandalkar Petitioner vs. Deputy Charity Commissioner & Ors. Respondents Ms. M. S. Parasnis, Advocate for Petitioner. Mr. A. R. Metkari, AGP for Respondent No.1 / State. Mr. Pratap Patil, Advocate for Respondent Nos.2 & 3. CORAM : C.V. BHADANG, J. DATE : 13th JANUARY, 2020 P.C. . Not on board. Taken on board. This is mentioned for extension of the ad-interim relief which was continued for a period of four weeks on 16/12/2019. On hearing learned counsel for the parties, ad-interim relief shall continue to operate for period of three weeks as a last chance. No further extension shall be granted. Stand over to 3/2/2020. C.V. BHADANG, J.

Order - Status 18: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5870 OF 2018 ….. Sunanda Suresh Bhandalkar Petitioner vs. Deputy Charity Commissioner & Ors. Respondents Ms. Priya Shetty i/b. Ms. M. S. Parasnis, Advocate for Petitioner. Mr. A. R. Metkari, AGP for Respondent No.1 / State. Mr. Pratap Patil, Advocate for Respondent Nos.2 & 3. CORAM : C.V. BHADANG, J. DATE : 3rd FEBRUARY, 2020 P.C. . The petition is already disposed of on 16/12/2019. Hence, removed from board. C.V. BHADANG, J. Mamta Kale

Order - Status 19: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5870 OF 2018 WITH WRIT PETITION NO. 12574 OF 2018 Sunanda Suresh Bhandalkar ..Petitioner vs. Deputy Charity Commissioner & Ors. ..Respondents Ms. Priya Shetty i/b. Ms. M. S. Parasnis, Advocate for Petitioner. Mr. A. R. Metkari, AGP for Respondent No.1 / State. Mr. Pratap Patil, Advocate for Respondent Nos.2 & 3. ….. CORAM : C.V. BHADANG, J. DATE : 3rd FEBRUARY, 2020 P.C. . The petition is already disposed of on 16/12/2019. Hence, removed from board. C.V. BHADANG, J.