Gujarat High Court
Mohanbhai Thakorebhai Gamit vs The Joint Charity Commissioner on 20 June, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/3393/2019 ORDER DATED: 20/06/2023
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`IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3393 of 2019
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MOHANBHAI THAKOREBHAI GAMIT & 3 other(s)
Versus
THE JOINT CHARITY COMMISSIONER & 7 other(s)
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Appearance:
MR. M.I. MERCHANT, ADV FOR MR YV VAGHELA(2450) for the
Petitioner(s) No. 1,2,3,4
DS AFF.NOT FILED (N) for the Respondent(s) No. 7,8
MR ARPIT A KAPADIA(3974) for the Respondent(s) No. 5,6
MR. ABHIJIT RATHOD, ADV. FOR MR MEHUL H RATHOD(701) for the
Respondent(s) No. 2,3
MR. NIRAJ SHARMA, AGP for the Respondent(s) No. 1
UNSERVED REFUSED (N) for the Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 20/06/2023
ORAL ORDER
1. Heard Mr. M.I. Merchant, the learned advocate appearing with Mr. Y.V. Vaghela, the learned advocate appearing for the petitioners, Mr. Abhijit Rathod, the learned advocate appearing for Mr. M.H. Rathod, the learned advocate appearing for the respondent Nos. 2 and 3, Mr. Arpit Kapadia, the learned advocate appearing for respondent Nos. 5 and 6 and Mr. Niraj Sharma, the learned AGP appearing for respondent No.1.
2. The brief facts leading to the filing of the present petition read thus:
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NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined 2.1 It is the case of the petitioners herein that on 10.9.1986, Gram Seva Mandal Chakwan, bearing Registration No. F/433/Surat came to be registered as Public Charitable Trust under the provisions of Bombay Public Trusts Act, 1950 ('the Trust Act' for short), rendering service in the field of education in the remote places of tribal area and has established and managing the following educational institutes. The details of the institutions managed by the trust are as under:
1. Ashramshal, Limbi (Sherula)
2. Ashramshala, Katasavan (Raniyaba)
3. Ashramshala, Borkuva.
2.2 It is also the case of the petitioners that there are 11 founder trustees appointed for lifetime and their names are shown in the PTR. As per the trust deed, the minimum requirement is of 9 trustees. The vacancies that may arise are to be filled up by the remaining trustees by appointing new trustees. During 1992 to 2007, four trustees passed away but no steps were taken by the then President Late Rangjibhai Huliyabhai Gamit to call Page 2 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined meeting and to appoint new trustees. In 2017, two more trustees namely Rangjibhai Huliyabhai Gamit and Puniabhai Hatiyabhai Gamitpassed away. The copy of PTR is duly produced at Annexure "B".
2.3 It is further the case of the petitioners that on 16.4.2014, a meeting of the Executive Committee (trustees) of the trust was convened wherein, all the trustees (except Late Rangjibhai Huliyabhai Gamit ) were present and many decisions were taken and vide Resolution No.3, the present petitioners were appointed as trustees against the vacancies that arose on account of death of founder trustees and the said decision was subsequently approved by general body meeting dated 25.4.2014. The Change Report No.272 of 2014 was submitted on behalf of the trust, before the Assistant Charity Commissioner, Surat for deleting the names of deceased trustees from PTR and for adding names of newly appointed trustees i.e. petitioners herein. The said change report was then transferred to the Assistant Charity Commissioner, Vadodara and renumbered as Page 3 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined Change Report No. 441 of 2018. In exercise of power under Section 22 of the Trust Act, the Assistant Charity Commissioner, Vadodara partly allowed the said change report and thereby names of deceased trustees were ordered to be deleted from the PTR, however, change report qua recording the names of the petitioners, in place of vacant posts of trustees was rejected by order dated 23.10.2018.
3. Mr. Merchant, learned advocate appearing for the petitioners herein submitted that the petitioners herein have challenged the aforesaid order dated 23.10.2018 passed in said change report being 441 of 2018 by filing an Appeal before the learned Assistant Charity Commissioner by preferring an Appeal under Section 70 of 'the Trust Act'.
3.1 In the facts of the present, the deceased trustees Late Rangjibhai Huliyabhai Gamit (respondent No.7) and Late Puniabhai Hatiyabhai Gamit (respondent No.8) along with respondent No.5 herein preferred Judicial Misc. Page 4 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023
NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined Application No.16 of 2014 before the Joint Charity Commissioner, Surat praying for authorising Late Rangjibhai Huliyabhai Gamit to operate Bank account along with other prayers, under the provisions of Section 41 of the Trust Act. The said application being JMA No. 16 of 2014, duly produced at Annexure "D". The prayers as prayed for in Judicial Misc. Application No. 16/2014, which are duly produced at Page-63, read thus:
"28. Therefore, applicants pray that:-
1. Be pleased to issue permanent instruction to the respondent that only applicant No.1 is authorized to conduct financial transactions with the bank of "Gram Seva Mandal, Chakvan" , institution and at other places and except applicant No.1, nobody has right to operate such accounts.
2. Be pleased to issue permanent instruction that the respondent has no any right to cause hindrance in financial transactions of Applicant No.1, Institute.
3. Respondent Nos 5 to 8 are not trustees of "Gram Seva Mandal, Chakvan" therefore, they have no right to enter into any transaction on behalf of the trust and such permanent instruction be issued that they shall not enter into such transaction.
4. Be pleased to award the cost of this application from the respondents.
5. Be pleased to grant any other relief/s of this application which may deem fit and proper."Page 5 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023
NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined 3.2 The learned the Joint Charity Commissioner, Surat by order dated 29.10.2018, while partly allowed the said application. The operative part of the said order, which is produced at Page-91 & 92, read thus:
"(24) Thus, considering the application of the applicant, the reply of the respondents, the hearing conducted before the Authority and the documentary evidences submitted, the following order is passed for smooth administration of this organization.
Order:
The applicant's application is partially granted.
The following directions are given.
(1) A permanent direction is given that, the Respondent No.5 to 8 are not authorized to perform any act as a member or trustee of the Gram Seva Mandal, Chakwan as per the constitution of the organization, they are not entitled to take part in the administration of the organization. (2) Trustees are instructed hereby to fill up necessary change reports to delete the names of the deceased trustees and to submit the same before competent authority. (3) It is instructed that the existing trustees who are on the P.T.R. of the Trust shall call a regular meeting in accordance with the constitution to replace the deceased trustees and induct the appropriate member as a trustee from the list of members then continuing in the membership of the Trust to constitute a quorum of at least nine members as per the Page 6 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined constitution of the Trust. And it is directed that a change report regarding the names of the newly admitted trustees on P.T.R. be filed in the registration office within the time limit.
4) The trustees on P.T.R. shall register the property under the ownership of the Trust or the same acquired through long-term possession along with necessary supporting evidence in the concerned office within 30 days on the P.T.R. of the Trust. Necessary action shall be taken after examining whether the prosecution be initiated under section 66 by the concerned registration officer against any responsible person for not filing the change report within time limit as per the provisions of section 22.
(5) If it appears necessary, the Assistant Charity Commissioner himself or through an authorized officer shall conduct or get conducted an inquiry in accordance with the powers conferred by section 37, as to how much amount has been received from the Government or any other donation for the construction or maintenance or repair of immovable property since the formation of the Trust till date and as to where and how it was used, whether it is mentioned in the audit report submitted by the Trust, and after verifying the account books and accounts of the Trust, whether the trustees of the Trust have caused any loss by using the funds of the Trust improperly with respect to the reply submitted by the trustees of the Trust in this application, and whether any offence of negligence, breach of trust or misappropriation has been committed by the trustees or any other person in that regard, and whether the public trust has suffered any loss due to the same, and whether anyone is responsible for paying such loss in the Trust.Page 7 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023
NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined (6) The Assistant Charity Commissioner, Surat shall conduct an inquiry as per Section 39 with respect to the inspection report submitted to him and the clarifications submitted under Section 38 as to whether the Trust has suffered any financial loss and whether such loss has been caused due to the gross negligence, breach of trust, misappropriation or misconduct of any trustee or other person. Further, the Assistant Charity Commissioner shall submit a report to this office with his findings within three months.
(7) In the present application and all other applications connected therewith all parties shall not incur the costs of this application from the Trust. If any cost has been incurred from the Trust, the same shall be deposited back to the Trust with an effectual receipt and such effectual receipt shall be produced to the Superintendent of this office within 15 days in person or by post.
(8) The parties and all the trustees on P.T.R. of the Trust shall be informed about the order. Further, for appropriate action, the Assistant Charity Commissioner, Surat and the competent authority of the concerned department of the Government allotting the grant to the Trust shall also be informed."
4. The petitioners herein being aggrieved by the order impugned dated 29.10.2018 passed by the respondent No.1 in JMA No.16/2014 at Page-73, have filed the present petition and prayed for following reliefs: Page 8 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023
NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined "9(A) 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 the respondent No.1 in JMA NO.16 of 2014 with all consequential effects in favour of the petitioners;
(B) During the admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to restrain the respondents-trustees from calling meeting and appointing other new trustees as per the direction No.3 of the impugned order on any conditions that may be deemed fit and proper in the interest of justice;
(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."
5. Mr. Merchant, learned advocate appearing for the petitioners at the outset submitted that the petitioners herein are limiting prayers to the extent of directions No.1 and 3 in the impugned order, duly referred above, which are beyond the jurisdiction of the respondent No.4 authority.
5.1 Mr. Merchant, the learned advocate appearing for the petitioners also submitted that the direction impugned is self-contradictory. It was submitted that the Page 9 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined respondent authority, while passing the impugned order, on one hand held that the petitioners herein may not be permitted to participate in any of the trust's activities since their appointment is made by Trustees falling below minimum number of Trustees prescribed by mode and on the other hand there is a direction to appoint new trustees in accordance with Trust Deed. 5.2 It was submitted that this direction to appoint new trustees is beyond the provisions of Section 41A in the facts of the case wherein the directions are required to be granted for proper administration of the Trust. 5.3 Mr. Merchant, the learned advocate also submitted that so far as the change order passed under Section 22 of the Trust Act in change Report No. 441 of 2018 i.e. Direction No.1 is concerned, the petitioners are also aggrieved by the said direction and have filed appeal and, therefore, the said direction by which the petitioners are aggrieved, would be adjudicated in the said appeal.
Mr. Merchant, the learned advocate submitted that Page 10 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined the Direction No.3 in the impugned order, is required to be quashed and set-aside.
6. Mr. Arpit Kapadia, learned advocate appearing for the respondent Nos. 5 and 6 has placed on record an affidavit-in-reply filed by the respondent herein and submitted that no error is committed by the respondent authority in passing the impugned order dated 29.10.2018.
6.1 Mr. Kapadia, the learned advocate submitted that there are number of irregularities which are committed at the instance of the trustees, and therefore, the same requires to be checked.
6.2 Mr. Kapadia, learned advocate submitted that if the petitioners are aggrieved by any of the order passed by the Assistant Charity Commissioner under Section 22 of the Act in change report No.441/2018, it is always open for the petitioners herein to filed an appeal. On the aforesaid ground, it was also submitted by Mr. Kapadia, Page 11 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined the learned advocate appearing for the respondent Nos. 5 and 6 that original complainant i.e. Rangjibhai Huliyabhai Gamit and Puniabhai Hatiyabhai Gamithaving expired pending the impugned proceedings, respondent No.5 is the only one who is contesting the said application. 6.3 Mr. Kapadia, learned advocate submitted that the respondents herein being one of the trustees of the said trust, is concerned with the welfare of the Trust and submitted that this Court may consider the same while passing any order.
7. Mr. Niraj Sharma, learned AGP for the respondent authority reiterated what was stated by Mr. Kapadia, learned advocate appearing for respondent Nos. 5 and 6 and submitted that this Court may consider the same while passing any order. Mr. Sharma, the learned AGP submitted that the trustees of the trust are in-charge of the trust since considerably long time and, therefore, the order impugned dated 29.10.2018 may not be interfered with.
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8. Considering the submissions advanced by the learned advocates appearing for the respective parties, undisputed facts which emerge for consideration of this Court are that the petitioners herein are the trustees appointed vide resolution dated 16.4.2014 and approved by decision of AGM dated 25.4.2014. The petitioners herein submit that there were 11 founder trustees appointed for lifetime, whose names are shown in the PTR. The Minimum requirement, as per the Trust Deed is 9 trustees. On vacancies having been arose, the same could be filled up by the remaining trustees by appointing new trustees. 4 trustees having expired between 1992 to 2007, no steps were taken by the then President Late Rangjibhai Huliyabhai Gamit to call meeting and to appoint new trustees.
9. On 16.4.2014, a meeting of the Executive Committee (trustees) of the trust was convened wherein, all the trustees (except Late Rangjibhai) were present and many decisions were taken. Vide Resolution No.3, the present petitioners were appointed as trustees against the Page 13 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined vacancies which arose on account of death of founder trustees. The said decision was subsequently approved by general body meeting dated 25.4.2014. Resolution No.3 dated 16.4.2014 and Resolution dated 25.4.2014 are duly produced at Annexure - (Colly).
10. An application being Change Report No.272 of 2014 came to be filed before the Assistant Charity Commissioner, Surat at the instance of respondent No.3, which came to be re-numbered as Change Report No. 441 of 2018. The Assistant Charity Commissioner, exercising powers under Section 22 of the Trusts Act, partly allowed the report and passed an order deleting the names of 4 trustees who expired, however, rejecting the change report qua the present petitioners herein seeking inclusion as trustees in the said trust. While 4 names came to be deleted, the Assistant Charity Commissioner declined to add the names of the petitioners herein as trustees of the Trust. The said order dated 23.10.2018 is duly produced at Page-357 (R-13 Colly). Page 14 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023
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11. By direction No.1, the petitioners herein are not authorised to perform any act as member or trustee of the Gram Seva Mandal Chakwan as per the constitution of the Trust and are not entitled to take part in the administration of the Trust.
11.1 The aforesaid direction is in respect of the direction in the order passed in change report No.441 of 2018 which is challenged by the petitioner herein by filing appeal under Section 70 of the Trust Act. 11.2 In view of the above, the Direction No.1 of the said order dated 29.10.2018 passed by the Joint Charity Commissioner, Surat is directed to be deleted.
12. Considering the submissions advanced by the learned advocates appearing for the respective parties, this Court has considered the prayers as prayed for by deceased late Rangjibhai Huliyabhai Gamit and late Puniabhai Hatiyabhai Gamit and respondent No.5 in JMA No.16 of 2014 as referred above and the order impugned passed by the Joint Charity Commissioner, Surat dated Page 15 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023 NEUTRAL CITATION C/SCA/3393/2019 ORDER DATED: 20/06/2023 undefined 29.10.2018 duly produced in Para-3.2 of this order, more particularly Direction No.3 wherein it is instructed that the existing trustees who are on the P.T.R. of the Trust shall call regular meeting in accordance with the constitution to replace the deceased trustees and induct the appropriate member as a trustee from the list of members then continuing in the membership of the Trust to constitute a quorum of at least nine members as per the constitution of the Trust. It is further directed that a change report regarding the names of the newly admitted trustees on P.T.R. be filed in the registration office within specified time limit.
13. The aforesaid direction issued by the respondent authority, in the opinion of this Court, is required to be interfered with, in view of the fact that the aforesaid is granted by the respondent authority, which is beyond the prayers, as prayed for by the respondent No.5. Even otherwise, the aforesaid direction by the respondent authority is self-contradictory.
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14. In view of the aforesaid, the direction No.3 of the said order dated 29.10.2018 passed by the Joint Charity Commissioner, Surat is directed to be deleted.
15. Considering the aforesaid, by exercising the extra- ordinary jurisdiction under Article 226 of the Constitution of this, this Court is inclined to pass the following order:
In the order passed by the Joint Charity Commissioner, Surat Division dated 29.10.2018 in JMA No.16 of 2014,
(a) Directions Nos. 1 & 3 in Para-24 of the order dated 29.10.2018 are directed to be deleted.
(b) Rest of the aforesaid order remains the same.
The petition stands allowed to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 17 of 17 Downloaded on : Sat Sep 16 20:26:53 IST 2023