Choksi Rameshchandra Harishchandra vs Charity Commissioner on 19 September, 2019

[Cites 5, Cited by 0]

Gujarat High Court

Choksi Rameshchandra Harishchandra vs Charity Commissioner on 19 September, 2019

Bench: J.B.Pardiwala

         C/LPA/370/2016                                  ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 370 of 2016

          In R/SPECIAL CIVIL APPLICATION NO. 4940 of 2016
                               With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
            In R/LETTERS PATENT APPEAL NO. 370 of 2016
                               With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2019
            In R/LETTERS PATENT APPEAL NO. 370 of 2016
                               With
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2019
            In R/LETTERS PATENT APPEAL NO. 370 of 2016
==========================================================
             CHOKSI RAMESHCHANDRA HARISHCHANDRA
                            Versus
                CHARITY COMMISSIONER & 6 other(s)
==========================================================
Appearance:
MR.DEVENDRA H PANDYA(6462) for the Appellant(s) No. 1
MR RAKESH PATEL, AGP for the Respondent(s) No. 1
MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 7
MR MAULIK N SHAH(5280) for the Respondent(s) No. 2
MR MAULIN G PANDYA(3999) for the Respondent(s) No. 3,4,5,6
==========================================================

 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI

                          Date : 19/09/2019

                       ORAL ORDER

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. This intra court appeal under Section 15 of the Letters Patent Act is at the instance of the original writ applicant of a Special Civil Application under Article 226 of the Constitution of India and is directed against the judgment and order passed by the learned Page 1 of 7 Downloaded on : Sat Sep 21 21:50:10 IST 2019 C/LPA/370/2016 ORDER Single Judge of this Court dated 11.4.2016 whereby the learned Single Judge rejected the writ application.

2. The writ application under Article 226 of the Constitution of India came to be preferred before this court with the following prayers : "(A) The Hon'ble Court be pleased to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, direction or order, quashing and setting aside the action of the learned Charity Commissioner in not granting interim relief in Misc. Application No.22 of 2016.

(B) The Hon'ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, direction or order, prohibiting the holding of elections of respondent No.2Trust pursuant to the public notice dated 26.03.2016, annexed at Annexure:E to this petition.

(C) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to stay further proceedings of election of the respondent No.2Trust which is being held pursuant to the public notice dated 26.03.2016 annexed at Annexure:E to this petition.

(D) Such other prayer as may be deemed just and proper may be granted in the facts of present case."

Thus, it appears that the writ applicant prayed for appropriate direction to set aside the action on the part of the Charity Commissioner in not granting the interim Page 2 of 7 Downloaded on : Sat Sep 21 21:50:10 IST 2019 C/LPA/370/2016 ORDER relief in a Misc. Application and the second relief which was prayed for was for a direction to prohibit holding of the election by the respondent No.2Trust pursuant to a public notice dated 26.3.2016.

3. The learned Single Judge while rejecting the writ application observed as under : "5.6 In the facts and circumstances obtained, the principle in binding decision in Ashok C. Gandhi (supra) of requiring the petitioner to avail alternative remedy applies. By placing reliance on the aforesaid decision in Ashok C. Gandhi (supra). The submission of learned senior counsel could be countenanced that remedy is available to the petitioner and since the elections are over, the petitioner can avail such remedy. The remedy is under Section 22 of the Bombay Public Trust Act, 1950, for, it may also be, of instituting a Civil Suit under Section 9 of the Code of Civil Procedure, 1908 as observed by this Court in Ashok C. Gandhi (supra).

6. Various rival contentions of this area are not needed to be gone into by the Court. Whether the elections were held in illegal manner is also an issue requiring a factual examination and to be established on facts and therefore, not fit to be considered in the writ jurisdiction. The petitioner has remedy in terms of under Section 22 of the Bombay Public Trust Act as well as one of instituting civil suit and thereby his case.

6.1 With regard to Miscellaneous Application No.22 of 2016 filed by the petitioner before the competent authority of the office of the Charity Commissioner making grievance in respect of the election in question and the related prayers, it was submitted on behalf Page 3 of 7 Downloaded on : Sat Sep 21 21:50:10 IST 2019 C/LPA/370/2016 ORDER of the petitioner that the said application was under Section 41A of the Bombay Public Trust Act, 1950 and that the powers in respect of issuing directions under the said Section 41A are administrative in character. There is no dispute with regard to this submission pointing out about the nature of powers to be exercised by the authority under Section 41A of the Public Trust Act.

7. For all the aforesaid grounds coupled with an overriding reason that prayers made in this petition were for setting aside the action of the Assistant Charity Commissioner in not granting relief in the aforesaid Miscellaneous Application No.22 of 2016 as well as for prohibiting holding of elections. These prayers no more survive for any further consideration in view of the abovestated facts, circumstances, events and developments. No further pleading or other prayer is made. The petitioner cannot urge contentions to seek prayers which are not prayed for, which are otherwise not liable to be granted in light of above, more particularly when all the contentions sought to be raised here can be properly urged before appropriate forum/authority before which a remedy by challenging the elections is available after the conclusion of elections.

8. It goes without saying that if alternative remedy of challenging election in question is availed by the petitioner, in that eventuality, this order and observations made herein shall not be an influencing factory nor shall come in way of the petitioner having recourse to such remedy. This Court has not gone into the merits of the case of the petitioner in respect of validity of the election in question. The observations made in this order is for the purpose of disposal of the present petition only and shall not be construed as an expression on merits so as to come in way of either side in respect of Page 4 of 7 Downloaded on : Sat Sep 21 21:50:10 IST 2019 C/LPA/370/2016 ORDER their contentions to be urged before the alternative forum in the event the petitioner avails the alternative remedy and challenge the election.

9. In the aforesaid view, petition no more requires to be entertained any further, hence dismissed. Interim relief is vacated. Notice stands discharged."

The plain reading of the impugned order passed by the learned Single Judge would indicate that the learned Single Judge thought fit not to entertain the writ application in view of the alternative remedy available to the writ applicant for the purpose of challenging the election in question. The learned Single Judge took the view that the writ applicant has a remedy in terms of Section 22 of the Bombay Public Trust Act as well as one of instituting a civil suit.

4. Having regard to the nature of the dispute between the parties if the learned Single Judge thought fit not to entertain the writ application on the above referred two grounds, then in our opinion no error not to speak of any error of law could be said to have been committed by the learned Single Judge in passing the impugned order.

5. We are informed that the election process Page 5 of 7 Downloaded on : Sat Sep 21 21:50:10 IST 2019 C/LPA/370/2016 ORDER got completed almost two years back. A new body of trustees almost 21 in numbers came to be elected in the year 2016. We take notice of the fact that the coordinate bench of this court passed the following order on 28.4.2016 : "NOTICE to the respondents returnable on 13th June, 2016.

Mr.Maulik Shah, learned counsel waives service of notice on behalf of respondent no.2, Mr. Maulin Pandya, learned counsel waives service of notice on behalf of respondent nos. 3 to 6 and Mr.Daifraz Havewalla, learned counsel waives service of notice on behalf of respondent no.7. Statusquo as on today with regard to the election of the trust shall be maintained by the parties."

It appears that status quo was ordered to be maintained as on the date of passing of the above referred order and in such circumstances the newly elected board of trustees have not been able to discharge their functions, past almost three years. As we do not find any merit in this appeal, the same is hereby dismissed. The impugned order passed by the learned Single Judge is hereby affirmed. The order of statusquo is hereby vacated forthwith. As the appeal is dismissed, the connected civil applications would not survive and are disposed off accordingly.

Page 6 of 7 Downloaded on : Sat Sep 21 21:50:10 IST 2019 C/LPA/370/2016 ORDER

6. If the writ applicant has any grievance with regard to the legality and validity of the process of election then it is open for him to avail of appropriate legal remedy before the appropriate forum in accordance with law.

(J. B. PARDIWALA, J) (VIRESHKUMAR B. MAYANI, J) K.K. SAIYED Page 7 of 7 Downloaded on : Sat Sep 21 21:50:10 IST 2019

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