Gujarat High Court
Manishbhai Narendrakumar Pandya vs Joint Charity Commissioner Ahmedabad on 28 October, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/11115/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11115 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE BELA M. TRIVEDI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MANISHBHAI NARENDRAKUMAR PANDYA
Versus
JOINT CHARITY COMMISSIONER AHMEDABAD
==========================================================
Appearance:
MR. JAIMIN R DAVE(7022) for the Petitioner(s) No. 1
MS HIRVA R DAVE(10742) for the Petitioner(s) No. 1
MR SHIVAM D PARIKH(9477) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,10,11,12,13,14,15,16,17,2,3,4,5,7,8,9
MR PK SHUKLA(1056) for the Respondent(s) No. 6
==========================================================
CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 28/10/2020
CAV JUDGMENT
1. The petitioner claiming to be a Member as well as a beneficiary of one Shri Daskoshi Trivedi Mevada Braham Samaj (hereinafter referred to as "the Trust"), registered under the provisions contained in Bombay Public Trust Act, 1950 Page 1 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020 C/SCA/11115/2020 CAV JUDGMENT (hereinafter referred to as "the said Act"), has challenged the impugned order dated 30.6.2020 passed by the respondent No.1 - Joint Charity Commissioner, in Judicial Misc. Application No.56 of 2019 filed by the petitioner seeking direction under Section 41A of the said Act, whereby the respondent No.1 while dismissing the said application has directed the concerned respondents to submit the change report and other books of accounts of the Trust within six months of the date of the orders.
2. The respondent No.6 Mahendrabhai Manibhai Pandya has resisted the petition by filing an affidavit inreply to which the petitioner has filed an affidavitinrejoinder. The said respondent No.6 has filed affidavitinsurrejoinder.
3. The short facts necessary to decide the present petition are that the Trust was registered under the said Act on 6.5.2008. ClauseII of the Trust Deed prescribed a mode for the appointment of Trustees, according to which the first set of Page 2 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020 C/SCA/11115/2020 CAV JUDGMENT Trustees was required to conduct the election within six months of the establishment of the Trust and thereafter the elections of the Trustees were to be held every three years. According to the petitioner, the respondent No.2 to 8 continued to remain Trustees of the Trust from its incorporation in utter disregard of the said Clause of the Trust Deed. It has also been alleged that the audited books of accounts of the Trust were also not submitted before the Assistant Charity Commissioner in accordance with the Section 33 of the said Act, since March 2012. On 10.6.2019, on account of the continuous persuasion of the petitioner and other members of the Trust, the respondent No.7 to 10 declared agenda and convened a General Meeting of the Trust for the election of the new Trustees. The meeting was scheduled to be held on 30.6.2019, however, the same was postponed on account of the death of one of the members of the Trustees. Thereafter, the General Meeting was called on 4.8.2019 by sending the messages on whatsapp. The said meeting was Page 3 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020 C/SCA/11115/2020 CAV JUDGMENT conducted without proper forum and out of 10 persons, who were close to respondent No.6 to 9 were elected as the Trustees. The petitioner had also contested the said election, however, he lost the same. The petitioner, therefore, challenged the action of the respondents by filing the Judicial Misc. Application No.56 of 2019 before the respondent No.1 under Section 41A of the said Act and seeking direction for the proper administration of the Trust. The said application came to be rejected as mentioned herein above.
4. The bone of contention raised by the learned Advocate Mr.Dave for the petitioner is that the respondent No.1, without any application of mind and in utter disregard of the provisions of the said Act and also the documents adduced by the petitioner in support of his application, had passed the impugned order. According to him, by not holding the election as per the provisions contained in the Trust Deed and by not submitting the audited books of accounts as per the provisions contained in Section 33 of the said Page 4 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020 C/SCA/11115/2020 CAV JUDGMENT Act, the concerned respondent had committed grave illegality and irregularity in the administration of the Trust and they had also failed to justify their action in their respective replies before the respondent No.1 Placing reliance on the judgement of this Court in case of Pawankumar Jain & Ors. Vs. Priyavadan Ambalal Patel & Ors., reported in 2016(1) GLR 242, Mr.Dave submitted that the administration and the management of the Trust is always required to be conducted as per the provisions contained in the Trust Deed and the Act, and therefore, it was the duty of the respondent No.1 to issue necessary direction for the proper administration and management of the Trust. According to him, the General Meeting in which the elections of the new Trustees was held was also illegally called, and therefore, the election of the said Trustees was also illegal.
5. The learned Advocate Mr.P.K. Shukla appearing for the respondent No.6 however, vehemently submitted that the petitioner having lost the election, had filed the proceedings before the Page 5 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020 C/SCA/11115/2020 CAV JUDGMENT respondent No.1 under the guise that the affairs of the Trust were not being properly managed. According to him, the election proceedings were conducted in accordance with the Trust Deed and as per the provisions contained in the Act. The respondent No.1 after passing the detailed order has rightly dismissed the said application filed by the petitioner under Section 41A of the said Act.
6. At the outset, it may be noted that the petitioner after having contested the election for the appointment of the Trustees and having lost the same had filed the proceedings before the respondent No.1, seeking directions for cancelling the election proceedings conducted on 4.8.2019 and for conducting the proceedings of election afresh in accordance with the provisions contained in the Trust Deed. Though the said application was termed as having been filed under Section 41A and under Section 69 of the said Act, the petitioner had sought to set aside the election of the Trustees held in the General Meeting on 4.8.2019, Page 6 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020 C/SCA/11115/2020 CAV JUDGMENT after having participated in the same and lost the said election. It cannot be gainsaid that the Charity Commissioner has wide powers to issue directions to any trustees 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. However, the petitioner could not have challenged the proceedings of election, more particularly after having participated in the same under the guise of seeking directions under Section 41A of the said Act.
7. There cannot be any disagreement to the ratio laid down by this Court in case of Pawankumar Jain & Ors. Vs. Priyavadan Ambalal Patel & Ors. (supra) relied upon by the learned Advocate for the petitioner, however, the same has no application to the facts of the present case. It is also needless to say that there are substantive provisions in the Act providing for the remedy for Page 7 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020 C/SCA/11115/2020 CAV JUDGMENT removal of the Trustees and appointment of new Trustees, as also the provisions empowering the respondent authority to take action against the Trust for noncompliance of the mandatory provisions of the Act. The petitioner, instead of resorting to the said provisions had sought the prayer to set aside the election proceedings under Section 41A of the said Act, which has been rightly considered and rejected by the respondent No.1.
8. In that view of the matter, the Court does not find any illegality or infirmity in the order passed by the respondent No.1. The petition being sans the merits is dismissed.
Sd/-
(BELA M. TRIVEDI, J) SINDHU NAIR/vinod Page 8 of 8 Downloaded on : Fri Oct 30 02:50:34 IST 2020