Gujarat High Court
Shantaben Lalman Mishra vs Shashikant P. Tiwari on 30 July, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/18641/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18641 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18642 of 2016
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SHANTABEN LALMAN MISHRA
Versus
SHASHIKANT P. TIWARI & 5 other(s)
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Appearance:
MR JV JAPEE(358) for the Petitioner(s) No. 1
MR. DHAWAN JAYSWAL, AGP for the Respondent(s) No. 6
MR VH DESAI(298) for the Respondent(s) No. 1,2,4,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 30/07/2019
ORAL ORDER
1. These petitions are filed for the prayers to set aside or to appropriately modify the order date 23-05-2016 passed by the Charity Commissioner, Ahmedabad in Judicial Misc. Application No. 36 of 2015 and No.39 of 2015 filed by the rival groups representing rival interest in Navsanskar Education Trust, a Public Charitable Trust with an objective of propagating education. These two petitions are filed against the same nature of order passed by the Charity Commissioner and as the contentions raised by both the parties are also the same, both the petitions are disposed of by this common order.
2. Learned Advocate for the petitioners has drawn the attention of this Court to the Trust deed of Navsanskar Education Trust registered vide Registration No.E/3492/ Ahmedabad on 17-04-1979. He submitted that Clause-4 provides for Page 1 of 7 Downloaded on : Wed Jul 31 23:37:32 IST 2019 C/SCA/18641/2016 ORDER minimum 5 Trustees and maximum 7 Trustees in the Trust. He also drew attention of this Court to Clause-7 of the deed, which provides for functioning of the Managing Trustee. He submitted that for functioning of the Managing Trustee, establishing of the Managing Trustee is very important and that is foundation for running of the Trust as per the Trust deed. He submitted that the petitioners have been Trustees since 37 years whereas the respondent Nos. 1 and 2 are honorary Trustees from the year 2001-02, however, had tendered resignation on 07-11-2019. However, on account of the name of the respondent No.1 and 2 continuing in the PTR, they continued as the Trustees.
3. He submitted that in the year 2012, the founder Trust- Shri K. H. Pandey expired and in his place, petitioner No.1 was appointed as Life Time Managing Trustee. Without their being any authority of law and though the respondent Nos. 1 and 2 had resigned in the year 2004, the meeting was called on 08-07-2014, where there was no Agenda and by illegal Resolution, removed the petitioner No.1 as Life Time Managing Trustee and inducted the respondent No.1 as Life Time Managing Trustee. He submitted that as per Clause-7(3), it is functioning of the Managing Trustee to call for a meeting of the Trustees and as the respondent No.1 was never Managing Trustee, could not have called for such meeting and pass an illegal Resolution. He submitted that in fact, the Agenda was not circulated and behind back, by marking presence of the petitioners in the meeting, the Resolution is passed. He therefore, submitted that in such situation, the petitioners were constrained to move an application under Section-41(A) being Judicial Miscellaneous Application No.39 of 2015 seeking direction that the Page 2 of 7 Downloaded on : Wed Jul 31 23:37:32 IST 2019 C/SCA/18641/2016 ORDER Opponent Nos. 1 to 5 may not restrain the petitioners from acting as Trustee and carry out the functioning of the Trustee and activities. Another relief prayed for was to restrain the respondents from conniving with School Staff, Students and Teachers of the Education Institution and to direct the respondents to give account of the money raised by them under the guise of running of Trustees. However, such direction though being in favour of the better administration of the Trust, the Charity Commissioner, under the impugned order, did not issue any direction which are required under Section-41(A) to protect the interest of the Trust. He submitted that the Charity Commissioner did not exercise his jurisdiction under Section-41(A) merely on the ground that the Change Reports are pending. He submitted that it was obligatory on the part of the Charity Commissioner to pass necessary direction under Section-41(A).
4. He relied upon the judgment in the case of Pavankumar Jain & Ors. V/s. Priyavadan Ambalal Patel & Ors. passed in Letters Patent Appeal No.1132 of 2013 in Special Civil Application No.7662 of 2013 dated 31-07-2015, to contend that it is jurisdiction of the Charity Commissioner to issue any direction that can be for protecting the interest of the Trust.
5. As against this, learned Advocate for the respondents submitted that directions given by the Charity Commissioner are in consonance with the requirement of Section-41(A) and therefore, has clearly restrained both the Trustees from identifying themselves as the Managing Trustees and had also restrained the Trustees from taking any type of policy decision directly affecting the object of the Trust. He submitted that while issue of, who is rightful Trustee, is Page 3 of 7 Downloaded on : Wed Jul 31 23:37:32 IST 2019 C/SCA/18641/2016 ORDER pending under the Change Report, no better directions could have been passed in the interest of the Trust.
6. Learned AGP submitted that in all, there are three Change Reports filed in connection with the present Trust, the first being No.879/2014 filed by the petitioners, where pursis is filed for withdrawing such Change Report, another Change Report filed being No.1383/2014 by the respondent Nos. 1 and 2, where the written arguments of the respondents are concluded and pending for arguments of the present petitioners and third being Change Report No.361/2015 by the petitioners, which is pending at the stage of evidence. He submitted that the Deputy Charity Commissioner could be directed to first decide the Change Reports expeditiously.
7. Having considered the rival submissions and having perused the documents on record, it appears that it is necessary to observe that fluid state of affair exist in so far as, the present Trust is concerned regarding its Managing Trustee. Though it is claimed by the petitioners that the respondent No.1 had resigned in the year 2009, had called for an illegal meeting in the year 2014 and had passed an illegal Resolution removing the petitioner as the Managing Trustee and inducted himself. This is also the subject matter of Change Report filed and pending before the Deputy Charity Commissioner. Similarly, Change Report with regard to the petitioners being Life Time Managing Trustee after the death of founding Trustee in the year 2012, is also filed and is the subject matter of decision of the Deputy Charity Commissioner. Therefore, the rival contention of both the sides to be the Managing Trustee is still at large at this stage, it will be appropriate to reproduce what is recorded in the impugned order, which is as under:
Page 4 of 7 Downloaded on : Wed Jul 31 23:37:32 IST 2019 C/SCA/18641/2016 ORDER"Hence, the contention of respondents is wrong. Now, during the course of hearing, the Charity Commissioner was pleased to pass an order upon Exh.1 on 06.10.2015 and it was ordered to the trustees not to take any policy decision in the matter and if any policy decision has been taken, may not be implemented. Moreover, during the course of hearing, some other directions were also issued by the Charity Commissioner as the trust was facing some hardship pertaining to the banking transaction. Hence, on 19.12.2015, the Charity Commissioner was pleased to issue the directions on the basis of agreement of the parties as under:
"In the joint agreement of the parties, it is hereby ordered that Mr. Shashikant P. Tiwari and Mr. Ashvinbhai Ramchandra Trivedi, both are permitted to operate the all Bank Accounts of the trust namely Nav Sanskar Education Trust, duly registered under Registration No.E/3492/ Ahmedabad in place of Smt. Shantaben L. Mishra. Both of above said persons namely Mr. Shashikant P. Tiwari and Mr. Ashvinbhai Ramchandra Trivedi shall have to rush to the Banks to submit their specimen signature card and other formalities.
This directions shall be implemented within 1 week. The Ld. Deputy Charity Commissioner is hereby ordered to expedite the proceedings of Change Report Nos.1383/2014, 879/2014 and 361/2015. Both of the parties shall cooperate for the expedite proceedings in the above said Change Reports.
In view of above, the order passed by the Ld. Charity Commissioner on 6.10.2015 is hereby modified with above directions.Page 5 of 7 Downloaded on : Wed Jul 31 23:37:32 IST 2019 C/SCA/18641/2016 ORDER
Necessary yadi be sent to the Bank Manager,
Allahabad Bank."
In view of this directions, applicant No.1 Shri
Shashikant P. Tiwari as well as respondent No.2 Ashvinbhai Ramchandra Trivedi both were permitted to operate the bank account of the trust. They were also directed to submit the specimen signature to the banking authority. Moreover, whatever the Change Reports as pending before the Deputy Charity Commissioner under Nos. 1383 of 2014, 879 of 2014 and 361 of 2015 were ordered to be expedited the said proceeding and both of the parties were ordered to co-operate and whatever the order passed by the Charity Commissioner on 06.10.2015 was modified."
8. It is pertinent to observe that the Charity Commissioner has taken care to balance both the sides by including name of the respondent No.1 and petitioner No.2 as the persons who would be permitted to operate all the accounts of the Trust- Navsanskar Education Trust. Moreover, the directions are issued to the effect that till final disposal of the three Change Reports, the parties are at liberty to settle the matter in the welfare of the Education Trust. However, no Trustees can take any type of policy decision affecting directly the object of the Trust. In the opinion of the Court, the aforesaid direction being in the interest of the Trust and does not in any manner appear to be against the interest of the Trust. The Court is not inclined to interfere at this stage, which will not resolve the fluid situation of the Trust and therefore, deems it appropriate to direct Change Report Nos. 1383/2014, 879/2014 and 361/2015 to be decided within a period of three months from the date of receipt of this order.
Page 6 of 7 Downloaded on : Wed Jul 31 23:37:32 IST 2019 C/SCA/18641/2016 ORDERBoth the petitioners and the respondents are directed to cooperate with the conclusion and decision of the aforementioned Change Reports.
9. With the aforesaid, the petitions stand disposed of.
Direct service is permitted.
(A.Y. KOGJE, J) PARESH SOMPURA Page 7 of 7 Downloaded on : Wed Jul 31 23:37:32 IST 2019