Gujarat High Court
Gopinathji Dev Mandir Trust vs State Of Gujarat & on 11 March, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
GOPINATHJI DEV MANDIR TRUSTV/SSTATE OF GUJARAT C/SCA/11706/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11706 of 2012 With CIVIL APPLICATION NO. 12796 of 2012 In SPECIAL CIVIL APPLICATION NO. 11706 of 2012 With CIVIL APPLICATION NO. 549 of 2013 In SPECIAL CIVIL APPLICATION NO. 11706 of 2012 With CIVIL APPLICATION NO. 10459 of 2012 In SPECIAL CIVIL APPLICATION NO. 11706 of 2012 ================================================================ GOPINATHJI DEV MANDIR TRUST & 6....Petitioner(s) Versus STATE OF GUJARAT & 7....Respondent(s) ================================================================ Appearance: MR BM MANGUKIYA, ADVOCATE for the Applicant(s) No. 1 - 7 MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1 - 7 DS AFF.NOT FILED (N) for the Respondent(s) No. 1 - 8 SHRI P.P.BANAJI, AGP for the Respondent(s) No. 1 MR. N.K.PAHWA for M/S THAKKAR ASSOC., ADVOCATE for the Respondent(s) No. 5 MR CB UPADHYAYA, ADVOCATE for the Respondent(s) No. 2 SHRI S.N.SHELAT, LEARNED SENIOR COUNSEL for MR MRUGEN K PUROHIT, ADVOCATE for the Respondent(s) No. 3 - 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 11/03/2013 ORAL ORDER
The present Special Civil Application No. 11706 of 2012 has been filed by the Petitioners under Article 226 of the Constitution of India as well as under Articles 14 and 19 of the Constitution of India and also under the provisions of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act ) for the prayers:
(A) Be pleased to allow this petition;
(B) Be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, and to quash and set aside the impugned order dated August 24, 2012 passed by the Joint Charity Commissioner respondent no.2 herein (Annexure-M), in pursuance to the application submitted by the respondents no.3 to 6 in the pending proceedings before the Joint Commissioner respondent no.2 herein;
(C) Be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, and to quash and set aside the application submitted by the respondents herein at order dated 24.8.12 in the pending proceedings before the Joint Charity Commissioner respondent no.2 herein.
(D) Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned order dated August 24, 2012 passed by the Joint Charity Commissioner respondent no.2 herein (Annexure-M), in pursuance to the application submitted by the respondents no.3 to 6 in the pending proceedings before the Joint Charity Commissioner respondent no.2 hearing;
(E) Be pleased to pass such other and further orders as may be deemed fit and proper.
It is contended inter alia that the impugned order passed by the Joint Charity Commissioner dated 24.8.2012 in purported exercise of power under Section 41A of the Act is illegal and arbitrary. It is contended that Section 22A of the Act is a complete Code so far as the election disputes are concerned, and the jurisdiction of the Charity Commissioner or the Joint Charity Commissioner under Section 41A of the Act is barred. It is also contended that which is not permissible by the front door cannot be attained by back door by raising pre-election dispute in relation to holding of ensuing election on the alleged ground that the ensuing election would not be held in free, fair and impartial manner. It is also contended that the impugned order is not sustainable and is over reaching the judicial process of the Hon'ble High Court, as the allegations have been made that 12000 persons have not been permitted to deposit their Dharmada Vero, and the order was passed by the learned Principal District Judge, Bhavnagar, and the matter is sub judice, and therefore the Charity Commissioner, under Section 41A of the Act, has no jurisdiction.
The facts giving rise to the present Petition have been stated in the Petition with regard to the background of the two Dioceses and the scheme which haa been framed by the competent court with regard to Gadhda temple. It is contended that the Satsangi of the respective temples are the voters of those committee and he should be of a particular temple. In other words Satsangi of one temple cannot be a voter of another temple. Reference is made to Desh Vibhag Lekh commanded by Lord Swaminarayan himself. It is also contended that as per the scheme the election of the temple committee is required to be held and conducted at every five years. The schedule of election is already fixed in the scheme itself. The preliminary list of voters is required to be prepared by the committee. The list is to be finalized by the competent authority so specified in Election Rules, meaning thereby, the Temple Board through its Chief Kothari. It is contended that the election is to be supervised by the staff as may be nominated by the District Judge. The whole election process is conducted by the Returning Officer appointed by the Assistant Charity Commissioner. It is in this background, the real dispute, which is started, is with regard to the Dharmada Vero / donation and issuance of the receipts, which has reference to the qualification for the voters list. It is in this background, learned Counsel Shri B.M.Mangukiya referred to the impugned order dated 24.8.2012 passed by the Joint Charity Commissioner, Rajkot in Application No. 41/18/2011 given under Section 41A of the Act. He pointedly referred to the order as well as the application and also the reply / objections filed in detail. Learned Counsel Shri B.M.Mangukiya emphasized with regard to the procedure, which is required to be followed. Learned Counsel Shri Mangukiya submitted that the Respondents are making the applications simultaneously to the different forums for the same relief. He referred to the Misc. Civil Application No. 216 of 2009 and submitted that an identical issue has been raised and the order came to be passed. Learned Counsel Shri Mangukiya submitted that Special Civil Application No. 13878 of 2010 was filed before the Hon'ble High Court and the Notice was issued and interim order was passed to the effect that, as per the direction of the District Court, the Petitioners were directed to issue receipt after receiving the Dharmada Vero / donations from the concerned Satsangi. Learned Counsel Shri Mangukiya submitted that this order was passed with the consent of the learned Advocates. Thereafter Civil Application No. 12979 of 2010 in Special Civil Application No. 13878 of 2010 was preferred. Learned Counsel Shri Mangukiya again referred to the order and submitted that similar contentions have been raised. He referred to the purshis at Annexure-D on page 114 in Misc. Civil Application No. 216 of 2009 pending before the learned District Judge, Bhavnagar and submitted that it has been recorded that most of the Satsangis have been issued the receipts. Learned Counsel Shri Mangukiya therefore submitted that the grievance does not survive and therefore the same grievance which is raised, cannot be permitted. Learned Counsel Shri Mangukiya submitted that the ex parte order passed by the Joint Charity Commissioner dated 22.7.2011 was sought to be modified or vacated by making an application at Annexure-I. Learned Counsel Shri Mangukiya submitted that the order was passed without bipartite hearing, and therefore, such an application was given. He submitted that thereafter again the impugned order is passed on 24.8.2012, which is impugned on various grounds. Learned Counsel Shri Mangukiya submitted that the application raising such objection has been heard. However, the Petitioner has not been given the list of the documents, and therefore, the order is erroneous and in contravention of Rules of natural justice.
Learned Counsel Shri Mangukiya mainly emphasized that, as could be seen from the application as well as the other proceedings, the relief, which is sought, is with regard to the election dispute, which is sought to be raised before the election. Therefore learned Counsel Shri Mangukiya strenuously submitted that it was premature, as that stage has not arrived. Since, the voters list could not have been prepared, the same could not have been submitted. Learned Counsel Shri Mangukiya submitted that since it is mainly referring to the election disputes, the exercise of jurisdiction by the Joint Charity Commissioner under Section 41A of the Act is erroneous and without jurisdiction. He submitted that any such election dispute has to be considered as per the provisions of Section 22A of the Act, which is a complete Code in itself. He has referred to Section 22A of the Act for that purpose. In support of his submission, learned Counsel Shri Mangukiya has referred to and relied upon the judgment of the High Court of Gujarat reported in 1992 (1) GLH 331 Syedna Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi Bohra Community v. Charity Commissioner, Gujarat State, Ahmedabad and Others and emphasized the observations made therein:
The only purpose which, therefore, S. 41A serves is to empower the Charity Commissioner to issue directions in respect of matters falling under Ss. 32 to 41. It is, therefore, merely an enabling and ancillary provision intended to make the implementation and enforcement of the provisions of Ss. 32 to 41 more effectively.
Learned Counsel Shri Mangukiya has further emphasized the observations:
Though the directions which the Charity Commissioner may issue under Section 41A constitute an administrative act on his part, in view of the attendant factors which we have set out above, the Charity Commissioner ought to afford to the concerned party an opportunity of being unless there is some imminent danger to the trust. Directions which he may issue may cast a reflection upon the management of the trust by a trustee or they may cast an aspersion or shadow of suspicion on him.
Learned Counsel Shri Mangukiya strenuously submitted that the powers under Section 41 of the Act relate to Section 32 to 41. Therefore, learned Counsel Shri Mangukiya submitted that so far as the election aspects or the matters are concerned, it has to be dealt with under Section 22A of the Act, and the Joint Charity Commissioner could not have resorted to Section 41A of the Act, and no order could have been passed. Learned Counsel Shri Mangukiya also referred to the orders and the papers, and tried to submit that the impugned order is passed in violation of Rules of natural justice.
Learned Counsel Shri Mangukiya again referred to Section 22 of the Act and submitted that it is a compete Code for the election matters, and the analysis of the provisions have been made by the High Court in its judgment reported in 2000 (2) GLR 1450 Swami Satyaprakashdasji Guru Ghanshyam Prasad Swami v. Joint Charity Commissioner, Rajkot.
He pointedly referred to the observations made in paragraph 12:
I hold that the Assistant Charity Commissioner in accordance with the provisions of Sec. 22 could enter into the inquiry with regard to the validity of the elections for the purpose of effecting the change so as to make the entries in the Public Trust Register.
Learned Counsel Shri Mangukiya submitted that the Bombay Public Trusts Act, 1950 is a complete Code and it provides for different matters relating to the Trusts, and the election matters are required to be decided as per the provision of Section 22 of the Act. Therefore, it was submitted that the exercise of jurisdiction under Section 41 of the Act was erroneous and the interim order could not have been passed. He has also referred to and relied upon the judgment of the High Court reported in 1962 GLR 117 Shantilal Khimchand & Others v. Mulchand Dalichand & Others and pointedly referred to the Head Note B to support his submissions. He has also referred to and relied upon the judgment of the High Court reported in 2010(3) GLR 2632 - Shantibhai Kanjibhai Ratanpara & Anr. v. Radharaman Dev Temple @ A Public Trust in the name of Shree Swaminarayan Temple, Junagadh and submitted about the scope of inquiry under Sections 22 and 41 of the Act.
The another facet of the submissions made by learned Counsel Shri Mangukiya is that, at the interim stage, no final relief could have been granted. He submitted that if the relief is finally granted at the admission stage, it would deny the right vested in the other side like the Petitioners herein. Learned Counsel Shri Mangukiya has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2003) 6 SCC 65 Union of India and Others v. Modiluft Ltd. emphasizing Head Notes B and C . He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2005 )9 SCC 733 State of U.P. And others v. Ram Sukhi Devi.
The another aspect, which he has emphasized is that, with some change in the name, the applications are being filed for the same purpose or the relief. He submitted that the Petitioners before the Joint Charity Commissioner had no locus standi as he was not pursuing the matter as a public interest or in a representative capacity. Therefore, it was submitted that few persons would not have any authority to raise an objection. In support of this submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (1970) 2 SCC 530 Girdhari Lal Gupta and Another v. D.N.Mehta, Assistant Collector of Customs and Another, (1976) (1) SCC 671 Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others.
Learned Counsel Shri Mangukiya has also referred to the judgment of the Hon'ble Apex Court reported in 1975 (2) SCC 711 to support his submission that who can be a aggrieved person to raise their objection and also to support that the Respondents who had filed an application, have no right to make any such application before the authority (Joint Charity Commissioner / Charity Commissioner). Learned Counsel Shri Mangukiya also submitted that since it is an issue touching the election, it has to be considered under Section 22 of the Act. He therefore submitted that under Section 41 of the Act, the Joint Charity Commissioner has no jurisdiction to make any inquiry with regard to the issues, which are covered as per Section 22 of the Act referring to the election. He therefore submitted that the order is erroneous, without jurisdiction and deserves to be quashed and set aside.
Per contra, learned Counsel Shri Navin Pahwa referred to the provisions of the Bombay Public Trusts Act, 1950 and submitted that sub Section (3) of Section 2 defined the Charity Commissioner . He also referred to Section 41A of the Act, which provide:
41A Power of Charity Commissioner to issue directions to trustees and other persons.
(1) Subject to the provisions of this Act, the Charity Commissioner may, from time to time, issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust.
(2) It shall be the duty of every such trustee and person to comply with a direction issued to him under sub-section(1).
Learned Counsel Shri Pahwa submitted that admittedly, it is a registered Public Trust, and therefore, the Charity Commissioner is a regulatory authority, and it could issue necessary direction even on its own for the management of the affairs of the Trust. Learned Counsel Shri Pahwa submitted that it cannot be therefore contended that the Charity Commissioner or the Joint Charity Commissioner has no authority or jurisdiction. He submitted that, in fact, for the proper administration and management of the affairs of the Trust, appropriate direction could be given and Section 41A is wider in scope than Section 22, which only confines to the aspects of election matters. However, learned Counsel Shri Pahwa submitted referring to the details that interim order came to be passed on 22.7.2011. The said interim order is not challenged but also not complied with, and therefore, further directions were necessary. Learned Counsel Shri Pahwa submitted that by the order dated 22.7.2011, all that was directed was to produce the books and the receipts for the scrutiny of the office of the Charity Commissioner. He submitted that it cannot be disputed that a Public Trust registered under the Bombay Public Trusts Act, 1950 cannot submit to the jurisdiction of the Charity Commissioner for the scrutiny and verification. He therefore strenuously submitted that the Charity Commissioner is the authority regulating the management and affairs of such Trust registered under the Act, and has therefore, right to verify and scrutinize the record, which is bound to be produced. Learned Counsel Shri Pahwa submitted that when it was not produced or complied with, the subsequent order dated 24.8.2012 came to be passed, and it is passed after considering the objections. Therefore learned Counsel Shri Pahwa submitted that the submission about violation of rules of natural justice or the ex parte order are thoroughly misconceived. He submitted that looking at the conduct of the Petitioners that inspite of the directions issued vide order dated 22.7.2011, there is no response and there is no compliance with the said order nor it is challenged. He submitted that if the party is aggrieved with the ex parte order, it could be challenged before the higher forum and the Appeal could have been filed. He submitted that in fact it is stated that why the Appeal is not filed as it could have been without any meaning. He submitted that this cannot be a an excuse, and when the Appeal has been provided, one cannot resort to the jurisdiction under Articles 226 and 227 of the Constitution of India. He pointedly referred to these aspects and the averments in the Petition:
Had the applicant challenged the said interim order, the petitioners would have been confronted with the counter that the ad-interim orders cannot be interfered with unless and until the Court hears the confronters of the said order by bipartite hearing. The petitioners were supposed to be cut from both the sides. Had the petitioners approached this Hon'ble Court, challenging the ad-interim order, Therefore, best course opens to the petitioner, as advised, to make an application for recalling of or revoking ad-interim order. The petitioners pointed out with substantial materials that the ad-interim order recorded by the Joint Charity Commissioner was not sustainable.
Learned Counsel Shri Pahwa therefore submitted that in fact the objections were raised and the replies have been filed, which have been considered, and after giving an opportunity, the impugned order dated 24.7.2012 has been passed, and therefore, the submissions about violation of rules of natural justice or denial of any opportunity of hearing is misconceived. Learned Counsel Shri Pahwa referred to the order of this court (Coram: R.K.Abichandani and D.H.Waghela,JJ) in Letters Patent Appeal No.2 of 2004. He pointedly referred to the observations referring to the scope of Section 41 and emphasized the observations:
This appeal is directed against the judgement and order dated 28.11.2003 rejecting the petition in which the order dated 5.11.2003 of the Joint Charity Commissioner, Surat Division, Surat issuing directions for holding of election of the institution is challenged.
2. These directions which are reproduced in the impugned order of the Learned Single Judge were issued under Section 41A of the Bombay Public Trust Act, 1950. Admittedly, the trustees were to hold office for 5 years on election basis and as stated by the Learned Counsel for both the sides, the last election was held in the year 1997. The change reports in respect of the election that took place in 1997 were rejected. The trustees whose names appear on the Register on the basis of the change report of 1992 were, therefore, claiming to continue in office. That is why an application was made seeking directions under Section 41A for holding of elections as per the terms of the trust deed.
3. The Learned Single Judge relying upon the decision of this Court in Acharya Shri Mahaprabhujini Ranavaswala Bethak Mandir Trust, Godhra and others Vs. Chokshi Ratilal Chandulal and others reported in 1996 (3) GLR, 307 held that the Charity Commissioner had wide supervisory powers over a public trust to issue any direction of remedial or preventive nature to perform duty in certain manner or to refrain from performing one or other duty in certain compelling circumstances which call for interference to secure objects of the public trust by a bonafide and efficient administration.
4. Learned Counsel appearing for the appellants contended before us that the powers under Section 41A of the said Act were confined to the matters which were covered by Section 32 to 41 of the Act and therefore, they did not extend to giving of a direction to hold elections.
In support of his contention, the Learned Counsel relied upon a decision of the Division Bench of this Court in Syedna Mohamed Burhanuddin Vs. Charity Commissioner reported in 1992(1) GLH 331, more particularly, on the following observations made in Para 36 of the judgement:
"The only purpose which, therefore, Section 41A serves is to empower the Charity Commissioner to issue directions in respect of matters falling under Sections 32 to 41."
Learned Counsel Shri Pahwa further emphasized the observations made in paragraph 5:
5. The Court has neither in Syedna Mohammed Burhanuddin (Supra) or in Navinchandra Jasani (Supra) laid down that the powers under Section 41-A cannot be exercised in any context other than the provisions of Section 32 to 41 of the Act. In fact, in para 41 and 42 of the decision in Syedna Mohammed Burhanuddin (Supra), the Division Bench has clearly held that the directions contemplated by Section 41-A were of administrative character and such directions are required to be issued for better and more efficient administration of a public trust. In Para 42, the Division Bench held that "Section 41-A is to be brought into play where some exceptional, unforeseen, unexpected or peculiar situation has arisen in the administration of public trust which is required to be cured by remedial directions or where circumstances has arisen foreboding such situation which requires a preventive measure in the form of direction." Again, in Para 45 of the judgement, the Division Bench in context of the provision of Section 41-A in terms held;
"In addition to what the said Act and rules made thereunder prescribe, if any further obligations are to be imposed upon a trustee, he must reach the decision on objective facts."
Again learned Counsel Shri Pahwa emphasized the observations in this judgment;
Though, of course, it can be exercised even in respect of those provisions as held by the Division Bench in Syedna Mohamed Burhanuddin (Supra) and by the Learned Single Judge in Navinchandra Jasani (Supra). Even if a narrow view as is sought to be canvassed on behalf of the appellant that the provisions of Section 41-A can be invoked only in the context of Section 32 to 41 is taken into consideration, it is obvious that without a validly elected administrative body, even the matters falling under Section 32 to 41 would warrant a direction on the part of the Charity Commissioner to hold elections to bring about an administrative body which functions in consonance with these provisions.
Again he emphasized;
When the trust deed provides for a periodical election of the trustees for the purpose of administration of the trust and if the body is not constituted as required by the terms of the trust deed, the Charity Commissioner would have powers to give directions for holding the election as contemplated by the trust deed which will have a direct impact on the aspect of administration of the trust, because, in absence of a properly elected body as required by the trust deed, a proper administration of the trust cannot be ensured. The direction requiring an election to be held as per the terms of the trust deed would, therefore, fall within the powers of the Charity Commissioner to ensure proper administration of the trust. The administration of the trust would include various aspects which would fall under the provisions of the Act and in absence of a properly constituted administrative body, the affairs of the trust can hardly be conducted in furtherance of its objects. It is, therefore, clear that the directions to hold elections of the trustees in consonance with the terms of the trust deed would clearly fall within the ambit of Section 41-A of the Act.
Learned Counsel Shri Pahwa also referred to and relied upon the judgment of the High Court of Gujarat (Coram: Jayant Patel,J) reported in 2008 (1) G.L.H. 427 Devkrushnadasji Guru Dharmadasji and Ors. v. (The) State of Gujarat and Ors. and submitted that when there is a power with the Charity Commissioner to entertain an application and to issue final directions under Section 41A of the Act, the interim order passed therein cannot be said as without jurisdiction or without any competence or authority as sought to be canvassed on behalf of the Petitioners. It was further emphasized that it has been specifically observed referring to the scope of Section 22 and 41A of the Act in paragraph 20:
22. Therefore, under such circumstances, it cannot be said that when the action is wholly without authority for maintaining the proper administration of the Trust, the only recourse available is Section 22 read with Section 22A of the Act and not by invoking of the power under Section 41A of the Act as that of the Charity Commissioner. The reliance placed upon the decision of this Court in the case of Shantilal Khimchand & Ors. (supra) is ill-found inasmuch as this Court, in the said decision had no occasion to consider the case for exercise of the power under Section 41A, vis-a-vis the powers under Section 22 of the Act nor it was a case before the Division Bench in the aforesaid decision that if the action of bringing about a change is wholly without jurisdiction, whether power under Section 41A can be invoked for proper administration of the trust or not.
Therefore, such decision is of no help to the petitioner.
Learned Counsel Shri Pahwa strenuously submitted that the entire submissions, which have been made, proceeds on the assumption that the Joint Charity Commissioner has no jurisdiction, and when the issue is regarding the election, it should be confined to Section 22 of the Act. However, learned Counsel Shri Pahwa submitted that, in fact, as could be seen from the details, before the election could be held, who could be the voters eligible for included in the voters list, will depend upon how the Dharmada Vero / donations are accepted by issuance of proper receipts. In fact, it is the manipulation in such matters, which is a cause of grievance. If it is sought to be pointed out, and if the Charity Commissioner, in exercise of his power vested by the Act, calls for the record, for the purpose of scrutiny, it cannot be said that the order is without jurisdiction. Learned Counsel Shri Pahwa submitted that it affects the administration of the affairs of the Trust, and therefore, when the very basis for collection of donation and the issuance of receipts and the manner in which the books are manipulated, is sought to be verified, in order to avoid any irregularity in the voters list to be prepared later on no grievance could be made. It cannot be said that any such application is premature or all such issues are relating to only election matters, and therefore, it has to be considered under Section 22 of the Act only and not under Section 41A of the Act. He submitted that it is the basis or the foundation, by which, ultimately, as and when the election in future is to be held and the voters list is to be prepared, it could not be resulting in the fair election, and therefore, at the inception, it requires scrutiny or verification. He therefore submitted that every matter is not a matter touching the election, and in fact, it is touching the better administration of the Trust, which is relevant also for the purpose of election. Therefore, learned Counsel Shri Pahwa submitted that the submissions are misconceived. He also referred to the prayers asked before the District Court in Misc. Civil Application No. 216 of 2009 and also the order of the High Court of Gujarat in Special Civil Application No. 13878 of 2010 dated 19.10.2010 produced at Annexure-B at page 107, and submitted that, by the interim order, the High Court had also directed to issue the receipts in respect of the donations as per directions issued by the District Court, Bhavnagar in Misc. Civil Application No. 216 of 2009 dated 30.9.2010. Again he referred to the order passed in Civil Application No. 12979 of 2010 in Special Civil Application No. 13878 of 2010 dated 28.10.2010 and submitted that the repeated grievance have been made to different forums, and in fact, the Petitioners having managing the affairs in high handed manner, compelled the Respondents or others to take the appropriate proceedings seeking proper direction. Learned Counsel Shri Pahwa submitted that inspite of the directions having not complied, and therefore, again the application was given before the Charity Commissioner and the impugned order came to be passed, which cannot be said to be erroneous.
Learned Senior Counsel Shri S.N.Shelat appearing for Respondent Nos. 4 and 5 submitted that the contention has been raised with regard to the locus standi. However, he submitted that Section 2(10) of the Act describes;
2(10) person having interest (includes) -
(a) In the case of a temple, person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple or who is entitled to partake or is in that habit of partaking in the distribution of gifts thereof.
(b) In the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs.
(c) In the case of a wakf, a person who is entitled to receive any pecuniary or other benefit from the wakf and includes a person who has right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, maqbara, or other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf.
(d) In the case of a society registered under the Societies Registration Act, 1860, any member of such society, and
(e) In the case of any other public trusts, any beneficiary;
Learned Senior Counsel Shri S.N.Shelat submitted that Clause (a) and (e) would cover the Respondents herein, and therefore, the contentions raised with regard to the locus standi are misconceived. Learned Senior Counsel Shri Shelat referred to the scheme of the procedure, which is followed for the purpose of collection of donation in election, xerox copy of which is produced on record. He referred to the public notice with regard to the Election Rules produced at page 253 and submitted that the District Court had framed the Rules in Misc. Application No. 57 of 1993 with regard to the election and the election is required to be held as provided therein. He submitted that it provides how the person could be in the voters list, and Rule 3 provides for preparation of the voters list based on the donations made during last 5 years. He submitted that, therefore, what has been provided is the persons and Satsangis or others would be eligible for inclusion in the voters list as provided therein that they have made the donations continuously for a period of five years. He submitted that like any other election, when the list is prepared for the purpose of electrol roll or the list of the voters, who could be qualified, a survey is being made, and if there is irregularity, it can always be pointed out, so that, it is corrected before the election, and there is a free and fair election. Learned Senior Counsel Shri Shelat, therefore, submitted that it is a stage or the matters prior to the holding of election, and it cannot be said to be touching only the election, but it has more emphasis on managing the affairs of the Trust. Learned Senior Counsel Shri Shelat therefore submitted that the apprehension of the Petitioner is that if the voters list is examined, it would lead to exercise of jurisdiction by the authority when it is pointed out that there is any irregularity in the collection of the donations and issuance of receipts, on the basis of which, who would be eligible for inclusion in the voters list. He therefore submitted that there are two separate aspects, and in case of civil proceedings, the Civil Court and the High Court may consider, whereas when it is touching the affairs of the management of the Trust, it would be regulated by the Charity Commissioner, which is an authority under the Act. Learned Senior Counsel Shri Shelat therefore submitted that the jurisdiction and authority of the Charity Commissioner cannot be disputed and it cannot be accepted that exercise of jurisdiction under Section 41A is illegal or erroneous.
Learned Senior Counsel Shri Shelat also referred to Section 41A of the Act and submitted that the scope of Section 41A of the Act is wide as it is touching all administration of the affairs of the Trust, which may include many things. Learned Senior Counsel Shri Shelat also referred to and relied upon the judgment of the High Court reported in 1992 (1) GLH 331 (supra) and emphasize the observations made in paragraph 41:
So far as the nature of directions, contemplated by Section 41A, is concerned, on analysing its contents and comparing them with the provisions of Sections 32 to 41 of the said Act, we have little doubt in our mind that they are administrative in character. They are intended to be issued for better and more efficient administration of a public trust. No question of adjudication of any controversy, dispute or lis arises thereunder. The object of Section 41A, as discussed earlier, is to streamline the administration of public trusts and to ensure more effective implementation and enforcement of the provisions of the said Act. Under these circumstances, since [@page 361] they are not quasi-judicial directions, the question of complying with principles of Natural Justice does not arise. We, therefore, cannot infer compulsion to hear a trustee before directions are issued to him under Section 41A as in the cases of quasi-judicial matters.
Therefore, what has been provided is that the opportunity of hearing should be provided though there is no bar exercise of jurisdiction. In the facts of the case, the opportunity as discussed above has been provided.
Learned Senior Counsel Shri Shelat has also submitted that though the submissions have been made with regard to the rules of natural justice, as could be seen from the record, the opportunity has been given and as there is no compliance, the office of the Charity Commissioner has only called for the papers for scrutiny, and therefore, it cannot be said that there is any violation of rules of natural justice.
Learned Senior Counsel Shri Shelat therefore submitted that in fact the petition is thoroughly misconceived, premature and cannot be entertained. Learned Senior Counsel Shri Shelat submitted that, at this stage, what the authority has done is, called upon the Petitioners and others to provide the books for verification, which does not amount to exercise of jurisdiction for the purpose of election. Learned Senior Counsel Shri Shelat therefore submitted that it is a stage prior to the election, and it is not in any way, can be said to be regarding the election matter, which is sought to be canvassed. He therefore submitted that the submissions with regard to Section 22 of the Act that is it is complete Code for election matters, cannot be applicable to the facts of the case. He submitted that as and when the direction of the Charity Commissioner is complied with, supply of the books, which would be scrutinized for the purpose of any irregularity ,and on the basis thereof ultimately at a later stage, when the election is to be held, the provisions of Section 22 of the Act would come into play.
Learned Senior Counsel Shri Shelat submitted that the submissions about violation of Rules of natural justice and the interim relief which has been granted in the nature of final relief, is also misconceived. He submitted that in the present case it could hardly be said that by the impugned order, any principal relief has been granted. He submitted that at this stage, the prayer is only with regard to verification and scrutiny of the record, which is directed to be produced for the purpose of understanding the issue, and therefore, it cannot be said that there is any interim direction or the order in the nature of final relief is granted. Learned Senior Counsel Shri Shelat submitted that no one can dispute the authority of the Charity Commissioner for calling the record for the purpose of examination when irregularities are alleged and manipulations are alleged. He therefore submitted that the present Petition deserves to be dismissed particularly when the impugned order dated 24.7.2012 is passed after considering the objection as could be seen from the record. Learned Senior Counsel Shri Shelat therefore submitted that the grievance made by the Petitioners may not be entertained and the present Petition may be dismissed.
Learned Advocate Shri C.P.Upadhyaya appearing for Respondent No.2 Joint Charity Commissioner referred to Section 41 of the Act and submitted that the Charity Commissioner is the superintending and regulating authority in respect of the Trust registered with the Charity Commissioner. He therefore submitted that when there are allegations about manipulations or the irregularities in the maintenance of any books or the proceedings, it could be subjected to verification and scrutiny. He submitted that even without any application, on its own, the Charity Commissioner may call for the record to satisfy himself. Learned Advocate Shri Upadhyaya submitted referring to the judgment of the High Court reported in 1992 (1) GLH 331 (supra) and also the judgment in Letters Patent Appeal No. 2 of 2004 and submitted that the judgment in the Letters Patent Appeal has referred to the earlier judgment of the Division Bench of the High Court reported in 1992 (1) GLH 331 (supra) and has interpreted the provisions specifically observing Section 41A is much wider and the submissions made by learned Advocate of the Petitioners that Section 41 could not have been resorted, may not be accepted. Learned Advocate Shri Upadhyaya submitted that when it could be said to be a election matter or election dispute, the same may be decided, but in the facts of the present case, it is a stage prior to any such election or touching any issue regarding election. He submitted that Section 22 has reference to the change and Section 22A refers to the other aspects.
He also referred to Section 37 read with Section 41A of the Act and submitted that the Charity Commissioner has power to call for any report or the statement or the particulars to ensure that the Trust is properly administered and the income is properly counted or appropriated. He submitted that in fact the impugned order is only an innocuous order calling upon the Petitioners to produce the record for verification, which is sought to be objected. He submitted that in view of the provisions of the Act as well as the scheme and also the order passed by the District Court in Misc. Civil Application No. 216 of 2009, such submissions may not be accepted.
Learned Counsel Shri P.J.Kanabar for the Applicant appearing in Civil Application No. 549 of 2013, which is filed for joining party, has sought the permission to address the Court. However, learned Counsel Shri B.M.Mangukiya raised an objection that his clients were not party to the original proceedings before the Charity Commissioner, and therefore, he has no locus standi and he cannot be joined as party and till he is joined as a party, hearing may not be afforded. Learned Counsel Shri Kanabar therefore did not press and submitted that the submissions have been canvassed, and therefore, he would not press the Application.
In rejoinder, learned Counsel Shri Mangukiya again reiterated the submissions with regard to the jurisdiction or the authority of the Joint Charity Commissioner. He has again reiterated that when the election programme is fixed by the schedule, the voters list is required to be declared on 25.2.2013, and therefore, as the election process can be said to have started, this court may not grant any indulgence to the Respondents. He submitted that as it is an election matter, Section 41 of the Act would not be attracted. Again he submitted that preparation of voters list is a election process, and therefore, the Court may allow this Petition setting aside the impugned order, by which the Petitioners have been directed to comply with the directions by submitting the books. In support of his submission, he referred to and relied upon the judgment of the High Court reported in 1986 GLH 498 (though the reference is made to this judgment, it does not relate to the controversy or the issue involved in the matter). Again learned Counsel Shri Mangukiya submitted that the election programme is fixed and the voters list is required to be published, which has been not published in view of his statement, and he would not be bound by his statement. He has therefore submitted that the present Petition may be allowed.
In view of the rival submissions, it is required to be considered whether the present Petition can be entertained or not.
As recorded herein above and as could be revealed from the papers, the background of facts is that the donations, which are received, for which the receipts are required to be issued from such books will have the record of the donors Satsangi or the others who have given the contribution. Those who have contributed in this manner for a period of 5 years would be the eligible voters as provided in the rules framed under the scheme known as Administration of Shree Gopinathji Dev Gadhda Mandir as per the order of the District Court in Trust Suit No.1 of 1975. It is in this scheme the Election Rules and the preparation of electroll roll is provided. It has also reference to the area and other qualification that such voters must have age of 21 years, and as a Tyagi, they must be residing in the temple or any other temple under the control of Shree Gopinathji Temple. The Gruhast voter should have contributed continuously for a period of five years and thereafter, he could be eligible to be a voter. The schedule is also mentioned Mahasud 15, which is providing for preparing the list. The contentions have been raised with regard to the manipulation in the books while collecting such donations and recording the names of such Satsangi or donors to the exclusion of others which would rule out many persons who have contributed to be eligible as a voter and including many persons who would otherwise not be eligible as a voter. It is in this background, earlier, the applications have been made to the District Court, Bhavnagar vide Misc. Civil Application No.140 of 2011 and also Misc. Civil Application No. 216 of 2009. Inspite of such applications, when the grievance persisted, the office of the Charity Commissioner has been moved by the application, on which, initially the order was passed dated 22.7.2011 at Annexure-G. Thereafter the objections were filed, and after considering the objection and other material and the submission, the impugned order dated 24.8.2012 came to be passed, which is challenged in the present Petition. Thus, though the grievance of the people resisted with regard to the misuse and abuse as well as irregularity, collection of donations and the issuance of the receipts in the manner that in a selected manner the persons could be made a voter so as to serve the purpose during the election at the end of five years. This grievance when made to the office of the Charity Commissioner by order dated 22.7.2011, a direction was issued to submit the necessary material. Inspite of this order, there is no compliance with the same and the order is also not challenged by the Petitioners, which again reflect the attitude that irrespective of the order passed by the competent authority, they would continue with the affairs so as to fulfill their ulterior motive. This has lead to filing of an application and as stated in the Petition, the Petitioners also filed an application for vacating the ex parte order dated 22.7.2011. The same has been considered, meaning thereby all the objections / submissions have been considered and the impugned order came to be passed. It would make the things clear as a day light that the submission made about the violation of rules of natural justice that an opportunity has not been given and an ex parte order is purported to be obtained, is without any merit and is contrary to the record. Further, during this period as there is no compliance it would reflect that irrespective of the direction of the competent authority, the Petitioners would continue their activities, so that, ultimately, at the time of election, in future, those who are making grievance, would met with the fait accompli that now the voters list has become final, the election programme has announced, the process has started. It is in this background of facts, now the submission made by learned Counsel Shri Mangukiya is required to be appreciated. Though the submissions have been made that the impugned order of the Joint Charity Commissioner under Section 41A of the Act is without authority and is illegal, the same is required to be considered in background of the facts stated herein above. While making an application for vacating the order and raising the objection, it would reveal that the Petitioners have submitted to the jurisdiction of the Charity Commissioner. Thereafter, in an application for vacating the order having failed after bipartite hearing, such a petition has been filed raising all such contentions only to avoid placing the relevant material before the competent authority and allowing the time to pass. Again, it is only with an object that the so called voters list is prepared in the manner they desire and there could not be an interference in the process. Thereafter, when the date is fixed and the programme is announced, the contention can be raised that now the election process has started. Therefore, the submissions have been made by learned Counsel Shri Mangukiya with much emphasis that Section 22 of the Act is a complete Code and answer to the grievance made by the Respondents and all election matters are required to be considered as per Section 22 of the Act and not under Section 41A of the Act, is misconceived. As could be seen from the Scheme of the Act, Section 41 of the Act is empowering the Charity Commissioner for his exercise of supervisory jurisdiction in respect of every Trust registered under the Act with the office of the Charity Commissioner. It gives an overall supervisory power with regard to the management of affairs of the Trust. In other words, the scope of Section 41A of the Act is much wider as it refers to any matter which touches the affairs of the Trust. Learned Counsel Shri Shelat has therefore rightly submitted that what is at the root of the matter is the administration of the Trust and the exercise of power in respect of any matter which touches the affairs of the management of the Trust. Therefore, analyzing the provisions of Section 41A of the Act vis-a-vis Section 22, the two Division Bench of this Court have specifically made the observations, which have been read at length by both the sides. The observations made by the Division Bench of this Court (Coram: R.K.Abichandani and D.H.Waghela,JJ) in Letters Patent Appeal No.2 of 2004 is referring to the earlier judgment reported in 1992 (1) GLH 332 (supra) referred to by learned Counsel Shri Mangukiya, specifically and clearly made the observation that Section 41 of the Act can be resorted in a given situation and it cannot be said that there is any bar to exercise of such jurisdiction or the powers by the Charity Commissioner. In fact Section 22 of the Act is confined to or relate to only election matters, whereas Section 41 of the Act has much wider scope when any matter touching the affairs of the management of the Trust is required to be examined. The provisions of Section 22 of the Act will come into play only from the stage when the elections are to be held after the election programme is announced. Therefore, it will come into play in respect of elections matters. Section 41A of the Act refers to the exercise of power when it touches the affairs of the management of the Trust, which may include variety of issues like the present case. In other words, the issues involved is not the election matter as it refers to the issues regarding the affairs of the Trust at a stage prior to the election. As per the scheme of the present Trust, the schedule is fixed, like Mahavat Poonam the election has to be held every five years and it is in this background when there are irregularities with regard to the aspect of donations, which in turn have a bearing on the eligibility of the voters, would touch the affairs of the management of the Trust. The issue involved is a stage prior to the election or the election matter, and therefore, when the Rules or the criteria as to how the donations should be collected on issuance of receipt, the manner of the recording of receipts and also the area that who could be considered as eligible voter by giving donation, whether it should be confined to a particular area or the place where he is attending to the same temple of Gopinathji Mandir or any temple subordinate to it or whether a person, who is affected like Satsangi, should have contributed / donated continuously for a period of five years, are the matters where the grievances have been made, which required the scrutiny of the Charity Commissioner with reference to such rules or the procedures prescribed by the scheme of the Trust. It may have a relevance for the necessary clarification or the amendment. Therefore, the Joint Charity Commissioner had initially only passed an order on 22.7.2011 calling upon the present Petitioners to submit some documents or the material. Thereafter as discussed above, after a bipartite hearing also, the directions have been issued. It therefore reflects that the Petitioner does not want a fair play and wanted to play hide and seek to withheld the information to serve the purpose for the election. Therefore, when the two Division Bench have made the observations referring to the scope of Section 41 and when the necessary directions have been issued even after the objections have been filed by the Petitioners, there is no reason to entertain such a Petition on the ground that the order is arbitrary, illegal or without jurisdiction. In fact as per the concept of pari delicto. One who has committed a wrong cannot come forward and heard to say that somebody has committed a wrong. One cannot take advantage of his own misdeeds by raising such bogie of violation of rules of natural justice or the scope of Section 41 or the exercise of power being arbitrary and illegal. It is worthwhile to note the observations made by the Division Bench (Coram: R.K.Abichandani and D.H.Waghela,JJ):
5. The court has neither in Syedna Mohammed Burhanuddin (supra) or in Navinchandra Jasani (supra) laid down that the powers under Section 41-A cannot be exercised in any context other than the provisions of Section 32 to 41 of the Act. In fact, in para 41 and 42 of the decision in Syedna Mohammed Burhanuddin (supra), the Division Bench has clearly held that the directions contemplated by Section 41-A were administrative character and such directions are required to be issued for better and more efficient administration of public trust.
Therefore, the submissions made by learned Counsel Shri Mangukiya that Section 41 of the Act cannot be resorted is misconceived. In fact it cannot be said to be only an election matter because that stage has not yet reached. The grievance made by the Respondents is with regard to the irregularity in managing the affairs of the Trust, which may have a bearing for the purpose of deciding the eligibility of the voters as per the scheme. It is at this stage, they have been making grievance right from 2011, and therefore, the Charity Commissioner, in exercise of powers under Section 41 of the Act, has called for the information, which cannot be said to be erroneous or without jurisdiction.
Therefore, the first limb of the argument by learned Counsel Shri Mangukiya that, as it is a election matter, with much emphasis on the relief claimed in the application made by the other side to support his submission that it is a election matter and therefore it should be decided as per Section 22 of the Act and Section 41 of the Act could not have been resorted, is thoroughly misconceived. The another facet, which has been canvassed that the order or direction is in the nature of final relief, is also misconceived. A bare perusal of the impugned order as well as the interim order passed ex parte dated 22.7.2011 would clearly suggest that it could hardly be said that there is any order or the final order making any adjudication on any issue.
As rightly submitted by learned Senior Counsel Shri S.N.Shelat, all that the order has been, is to produce the record for the purpose of scrutiny. It is on the basis of such scrutiny, perhaps the further direction could be given, and some issue, which might crop up, could have been decided. Therefore, at this stage, a mere order for producing the material like receipt books for the collection of donation cannot be said to be a final relief as sought to be canvassed. Therefore, the submissions made by learned Advocate Shri Mangukiya that at the interim stage the final relief is granted, is not permissible, is ill-founded.
The another aspect with regard to the locus satndi is required to be considered. The reliance placed by learned Senior Counsel Shri S.N.Shelat referring to Section 2(10) which defines persons having interest , assuming without admitting anything as per the scheme of the Act, the Charity Commissioner can suo motu issue necessary direction in exercise of his supervisory jurisdiction like Section 37 read with Section 41A of the Act as a regulatory authority and can issue such directions calling upon the party to produce the record for the purpose of examining about the management of the affairs of the Trust. Therefore, though such submissions have been made that few persons do not have right to make a grievance, is of no consequence. In fact, even if, no one has made a grievance, the Charity Commissioner may issue necessary directions. The Petitioners who are managing the affairs of the Trust, cannot be heard to say that though they are managing the affairs of the Trust registered under the Act, are not supposed to comply with the directions, they are not answerable and they will not produce the necessary papers for verification or for scrutiny, as if they are claiming exemption from any law or any provision of law. Such a total immunity is antithesis of rule of law which is not permissible and cannot be allowed. One more facet of the argument made by learned Counsel Shri Mangukiya that as per the scheme, for which a reference can be made to the scheme and the rules for election, that by Mahasood Punam the voters list is required to be published, and therefore, once the voters list is prepared and published, the election process has started, and therefore, no stay can be granted and no order could be passed by the Court referring to the judgment of the High Court reported in 1986 GLH 498 (though the reference is made to this judgment, it does not relate to the controversy or the issue involved in the matter.), is required to be considered. As could be seen from the facts narrated herein above, the matter was pressed by the Respondents who have been pursuing the matter since 2011 either before the District Court or before the Charity Commissioner or the Joint Charity Commissioner and even the said Misc. Civil Application which has been filed in 2012 has remained at the admission stage.
As back as in September 2012, the another Bench (Coram: K.M.Thaker,J) has passed the the order and thereafter the matter was kept pending before the another Bench (Coram:Z.K.Saiyed,J). Thereafter, when it has been placed before this Bench and accommodation has been granted to learned Advocate Shri Mangukiya. Learned Advocate Shri Mangukiya had specifically stated that as per the election programme. The date of publication of voters list is 26.2.2013 and he would restrict it till 26.2.2013. It is in this background, the statement made by learned Advocate Shri Mangukiya is required to be appreciated and it cannot be expected that the voters list could be published in spite of the statement made by learned Advocate. Thereafter, the direction has been given by this Court. Therefore, it cannot be said that the election process has started and / or the voters list is published.
Therefore, in light of the discussions made herein above and considering the rival submissions, the present Petition cannot be entertained and deserves to be dismissed in limine and accordingly stands dismissed with no order as to costs. Notice is discharged.
In view of the order passed in the main matter, Civil Application No. 12796 of 2012 as well as Civil Application No. 10459 of 2012 in Special Civil Application No. 11706 of 2012 does not survive as both the Civil Applications are filed for the similar interim order / stay of the order. Notice is discharged.
Similarly, as recorded herein above, Civil Application No. 549 of 2013 in Special Civil Application No. 11706 of 2012 also stands disposed of as not pressed as stated by learned Counsel Shri P.J.Kanabar.
(RAJESH H.SHUKLA, J.) JNW Page 39 of 39