Gujarat High Court
Ganpatbhai Madhubhai Chaudhary vs The Joint Charity Commissioner on 22 June, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/3715/2019 ORDER DATED: 22/06/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3715 of 2019
==========================================================
GANPATBHAI MADHUBHAI CHAUDHARY
Versus
THE JOINT CHARITY COMMISSIONER
==========================================================
Appearance:
MR. ABHIJIT RATHOD, ADV. FOR MR MEHUL H RATHOD(701) for the
Petitioner(s) No. 1,2,3
BHASKAR SHARMA(9209) for the Respondent(s) No. 2
MR. NIRAJ SHARMA, AGP for the Respondent(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 2
MR ARPIT A KAPADIA(3974) for the Respondent(s) No. 3,8
MR YV VAGHELA(2450) for the Respondent(s) No. 4,5,7
NOTICE SERVED BY DS for the Respondent(s) No. 6
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/06/2023
ORAL ORDER
1. By way of present petition, the petitioners herein are aggrieved by the impugned order dated 29.10.2018 passed by the respondent No.1 in JMA No.18 of 2014, which is duly produced at Annexure "E" at page-53.
2. The petitioner No.3 Jinabhai Ukabhai Gamit, who is original applicant No.4 and Ramanbhai Jinabhia Gamit- respondent No.8, who is original opponent No.3, have expired during the pendency of this petition.
3. The petitioners herein have prayed for the following Page 1 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined reliefs:
"9A. YOUR LORDSHIPS may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari for quashing and setting aside the impugned order dated 29.10.2018 passed by the respondent No.1 in JMA No.18 of 2014 with all consequential effects and be pleased to issue directions upon the respondents as prayed for in JMA No.18 of 2014;
(B) During the admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the impugned order dated 29.10.2018 passed by the respondent No.1 in JMA No. 18 of 2014;
(C) YOUR LORDSHIPS be pleased to pass such other and further orders as may be deemed fit, just and proper in the interest of justice."
4. By way of present petition, the petitioners herein and the respondent No.3 herein preferred an application under Section 41A of the Trusts Act before respondent No.1 being Judicial Misc. Application No. 18/2014, which is duly produced at Page-49 at Annexure "C", praying for the following reliefs:-
"(17) Hence, it is prayed that :-
(1) A permanent injunction may be passed against the respondent No.1 that the respondent No.1 shall not run or make to run the administration of the trust arbitrarily, Page 2 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined without holding meeting, without resolution of the Board of Trust against the provisions contained in the constitution of the Trust.
(2) A permanent injunction may be passed against the respondent No.2 that he shall not get a bank account opened in the name of the Trust without copy of the constituttion, copy of P. T. R., Resolution of the Board of Trust.
(3) As the respondent No.1 in this case has been removed from the post of President on 16/04/2014 unanimously, a permanent injunction may be passed against respondent No.1 that he shall not take any action or run administration by virtue of post as a Trustee or President of the Trust. A permanent injunction may also be passed against the respondent No.1 that he shall hand over the records of accounts of the Trust, which was in his custody as a President in the Past, to the present President.
(4) A permanent injunction may be passed against the respondent No.1 in this case that he shall deposit the amount of Rs.80,00,000/- immediately, which he has withdrawn in the name of his wife, sons, relatives and friends and which he has spent for his personal expenses.
(5) A permanent injunction may also be passed against the respondent No.3 and 4 that they, in collusion with respondent No.1, shall not do any act or get any act done, which is against the interest of the beneficiaries of the Trust, provisions of the Constitution and established Law.
(6) Further, the Honourable Court may grant any other relief as may be deemed fit and proper.
(7) The Honourable Court may grant permission to amend Page 3 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined or modify the petition if required."
5. Mr. Abhijit Rathod, the learned advocate appearing for the petitioner, at the outset, submitted that in the said application being JMA No. 18/2014, prayers No.1, 3 and 4 were not pressed. Respondent No.1, while passing the impugned order dated 29.10.2018, which is duly produced at Page-53, allowed the said application in part and directed as under:
"ORDER
18. "The application of the applicant is partly granted.
Therefore, the following directions are given.
(1) The In-charge President and Secretary shall convene a meeting of trustees, who are shown on the P.T.R. of the Trust on the date of the order, within 15 days from the date of the order and total two trustees - one selected by the Vice-President and Secretary and other suggested by Ramanbhai Zeenabhai Gamit or himself -
shall be selected for operating all the bank accounts of the Trust. This office be informed along with a certified copy of the original Resolution. The Board of the Trust shall continue to comply with this instruction until any other arrangement is done.
(2) With regard to the operating of bank accounts and putting signature, the authorized trustees shall pay the amount more than Rs. 500/- through Account Payee Page 4 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined cheque only. Under no circumstances, balance more than Rs. 1000/- shall be kept on hand. All the payments more than Rs. 500/- shall be got sanctioned before the committee of three members - Mr. Ganpatbhai Madhubhai Chaudhari, President of the Board of the Trust (Vice-President on the P.T.R.), Mr. Rameshbhai Jethabhai Gamit, Secretary, and Mr. Premchandbhai Vestabhai Gamit, Co-Secretary. Any payment of the Trust shall be made only after three members of the committee countersign the voucher.
(3) The committee consisting of Vice-President, Secretary and Co-Secretary shall submit quarterly accounts of expenses incurred by the Trust before the Office Superintendent for scrutiny. The Trust shall deposit Rs. 1500/- (Rupees One Thousand and Five Hundred Only) in the P.T.A. fund towards charges for scrutiny of accounts.
(4) The opponent no. 2 Bank and other banks, in which the Trust operates account, shall allow the said bank accounts to be operated after obtaining signatures of two trustees selected in accordance with the procedure mentioned in this Order.
(5) The accounts and vouchers shall have to be submitted for scrutiny as and when demanded by the trustees shown on the P.T.R. for the purpose of examining the functioning of the committee consisting of three members - Vice-President, Secretary and Co-Secretary
- and two trustees, who signed in the bank accounts. (6) The trustees on the P.T.R. shall constitute patron committee of two members for the supervision, administration and management of the Ashram Schools Page 5 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined organized by it. This committee shall submit progress report and budget estimates of each Ashram School in the quarterly meeting of the Trustee Board. The Trustee Board shall review the same and take appropriate action. The recommendation / opinion of the patron committee shall be mandatory for granting necessary expenses of the respective Ashram School. (7) All the parties shall not incur expenses of this application and all other applications related to this application on behalf of the Trust. If any expenses has been debited in the account of the Trust, the same shall have to be deposited in the Trust, and original receipt in that respect shall have to be produced before Office Superintendent of this office in person or by post within 15 days.
(8) The intimation of this Order shall be given to the parties and all the trustees on P.T.R. of the Trust and to the Assistant Charity Commissioner, Surat and the Competent Authority of the respective department of the Government providing the grant to the Trust for necessary action."
6. Being aggrieved by the aforesaid directions issued by respondent No.1, the petitioner herein approached this Court by filing the present petition on the ground that the direction Nos. 1 and 2, which are issued by the respondent No.1 are such that the same are not executable. It is submitted that the direction wherein it is Page 6 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined directed that the Bank Account be operated by one of the trustees that would be selected by the petitioner Nos. 1 and 2 and another trustee that would be selected by present respondent No.3 or by respondent No.3 himself. The said direction was in contravention of Trust Deed, which is produced at Page-27.
6.1 It is further the case of the petitioner that the petitioner No.1 is the President and Petitioner No.2 is the Secretary and Petitioner No.3 is the Joint Secretary of the Trust. As per the Trust Deed and the practice which has been followed since long, the Bank Accounts are to be operated by two signatories out of the three authorized signatories i.e. One signature of President or Vice- President and other signature of the Secretary.
7. Mr. Arpit Kapadia, the learned advocate appearing for the respondent No.3 vehemently submitted that no interference is called for in the direction issued by the respondent No.1 in the impugned order dated 29.10.2018. Mr. Kapadia, the learned advocate submitted Page 7 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined that there is misappropriation to the extent of more than Rs. 15 lakhs by the petitioners herein between 9.11.2018 and 8.3.2019 and the same is after the order is passed by the respondent No.1 dated 29.10.2018. 7.1 Placing reliance on the aforesaid submission, Mr. Arpit Kapadia, the learned advocate submitted that in view of the gross misconduct by the petitioners, the petitioners be put to strict check and ensure that there is no siphoning of the Trust's funds and that the petitioners are over-reaching the process of law.
8. Heard learned advocates appearing for the respective parties. It is apposite to refer to the interim order passed by this Court dated 12.3.2019, which reads thus:
"ISSUE NOTICE returnable on 2nd APRIL, 2019. Learned advocate Ms. Niyati Juthani waives service of notice on behalf of respondent no.3 and 8. Learned Advocate for the petitioner submits that preempting the action on the part of the petitioner, certain directions have been passed by which it has become impossible to run the trust as the directions are contained regarding the operating of the bank account.Page 8 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023
NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined Learned advocate for the petitioner states that the directions contained in operative part at No.1 and 2 is causing difficulty in running the administration of the trust.
In view of the aforesaid, the directions no.1 and 2 in operative part of the order dated 29.10.2018 shall remain stayed and that in lieu of the directions no.1 and 2 of the operative part of the order, the bank account shall be operated as per the original resolution of the trust. In the meantime no cash withdrawals shall be permitted.
Direct Service is permitted for the other respondents."
9. Considering the aforesaid, the issuance of direction to operate Bank Account by other trustees that may be selected as per the direction No.1 of the impugned order, is violative of the trust deed, which is binding to all. The respondent Nos. 4 to 7 were appointed as trustees in a duly valid meeting of the Executive Committee dated 16.4.2014, which was approved by the General Body in its meeting dated 25.4.2014 and the Change Report with regard to same is filed before the learned Assistant Charity Commissioner. By the order impugned, the respondent No.1, has indirectly taken a decision with regard to change report, which is pending before the Page 9 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined Assistant Charity Commissioner and has deprived the petitioners from their right to take part into the management of the Trust. The petitioners being the authorised representatives of the Trust as President and Vice-President be permitted to operate the Bank Account in accordance with the Trust Deed.
10. Considering the facts of the present case and the order impugned dated 29.10.2018 passed by respondent No.1 in JMA No.18/2014 and also the Trust Deed duly produced at Annnexure "A" at page No.27, the Directions No.1 and 2 of the operative part of the order dated 29.10.2018 passed by respondent No.1 in JMA No. 18/2014 are beyond the Trust Deed, which in the opinion of this Court, is binding to all and the directions issued would be in contravention of the Trust Deed.
11. Considering the aforesaid, by exercising the extra- ordinary jurisdiction under Article 226 of the Constitution of India, this Court is inclined to pass the following order:
In the order passed by the Joint Charity Page 10 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023 NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined Commissioner, Surat Division dated 29.10.2018 in JMA No.18 of 2014,
(a) the Directions Nos. 1 and 2 in Para-18 of the order dated 29.10.2018 are directed to be quashed and set-aside.
(b) It is further directed that the Bank Account of the Trust be operated as per the original Resolution of the Trust.
(c) No interference is called for in the rest of the directions.
11.1 It is further clarified that the petitioners herein shall abide by all the conditions, as referred above and rest of the conditions, as stated in the impugned order passed by the respondent No.1 dated 29.10.2018 in JMA No.18/2014.
Mr. Rathod, learned advocate undertakes that there would be strict adherence to the conditions stipulated in the order dated 29.10.2018 and the order which is modified by this Court.
Page 11 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023
NEUTRAL CITATION C/SCA/3715/2019 ORDER DATED: 22/06/2023 undefined The petition is allowed to the aforesaid extent with aforesaid direction. Direct Service is permitted.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 12 of 12 Downloaded on : Sat Sep 16 20:31:32 IST 2023