Gujarat High Court
Prakash vs S on 8 February, 2012
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/1434/2012 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1434 of 2012
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PRAKASH
GHISALAL SHARMA - Petitioner(s)
Versus
S
A DAVE OR HER SUCCESSOR IN OFFICE OF CHARITY COMMISSIONER & 2 -
Respondent(s)
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Appearance
:
MR
MIHIR JOSHI SENIOR COUNSEL WITH MS
MN UKANI for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 MS RUJUTA R OZA for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3
MR CB UPADHYAYA for
Respondent(s) : 1,
MS SN SOPARKAR SENIOR COUNSEL WITH MR DHAVAL D
VYAS for Respondent(s) : 2,
MR MIHIR THAKORE SR COUNSEL WITH MR
MANAV A MEHTA for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/02/2012
ORAL
ORDER
1.0 By way of this petition, the petitioners have prayed for following relief's:
[A] Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ, order and or direction quashing and setting aside the public notice dated 25.01.2012 issued in local vernacular daily "Gujarat Samachar" and public notice dated 26.01.2012 issued in local vernacular daily " Divya Bhaskar" ( Annexure-I collectively) inviting applications for membership in the petitioner-Trust; and further be pleased to quash and set aside order dated 27.01.2012 passed by the Charity Commissioner, Gujarat State, Ahmedabad below Misc. Application No. 10 of 2010 [ Annexure A] [B] Your Lordships may be pleased to permanently forbid the respondent, her subordinate officers/servants/agents from acting upon public notice dated 25.01.2012 issued in local vernacular daily " Gujarat Samachar" and public notice dated 26.01.2012 issued in local vernacular daily " Divya Bhaskar" [ Annexure-I collectively] and taking steps in the direction of making membership in the petitioner-Trust.
2.0 The short facts of the case are that the Incharge Charity Commissioner passed an order in Suo Motu Scheme Proceedings No.14 of 2005 framing the Scheme for the petitioner- Trust. The said action was challenged before City Civil Court, Ahmedabad by way of filing Civil Misc. Appeal No.614 of 2009. The City Civil Court by order dated 17.08.2010 set aside the order passed by the learned Charity Commissioner framing the Scheme for the petitioner-Trust. The said order was challenged before this Court by way of First Appeal Nos.2932 of 2010, 2933 of 2010 and 2935 of 2010. This Court by order dated 30.08.2011 set aside the order passed by the City Civil Court, Ahmedabad and confirmed the order of the Charity Commissioner initiating suo motu scheme under Section 50A of the Bombay Publice Trust Act and settling the same for the petitioner-Trust. The operative part of the said order reads as under:
"22.0 In the premises aforesaid, the order of Court below is quashed and set aside. The order of the Charity Commissioner initiating suo motu scheme under section 50A and settling the same except appointment of Executive Committee is confirmed. However, the appointment of Governing Council shall be continued on adhoc basis till 31st December 2010 i.e. till new Trustees and Governing Council are appointed by way of election or as per the procedure prescribed. It will be open to the Charity Commissioner to elect Trustees and Members of Governing Council as per the Scheme i.e. appointment of three trustees and seven members of Governing Council and other members. Such appointment shall be made on or before 31 st December 2012. The election shall be held by the Charity Commissioner from different categories of persons referred to in the bye-laws. It is clarified that if no members are available then new members can be enrolled from persons connected with School such as students, staff, parents or donors or any person rendering honorary services. Till the appointment of Trustees and Governing Council as per the Scheme, the Executive Committee shall continue to function for managing the day today affairs of the Society purely on adhoc basis upto 31 st December 2012.
Appeals are allowed to the aforesaid extent with no order as to costs." (emphasis supplied) 2.1 The aforesaid order was challenged before the Hon'ble Supreme Court which confirmed the order and preponed the date of election. The Charity Commissioner took over supervision of the Trust and requested the petitioner to furnish details of members. The petitioner replied to the Charity Commissioner to the effect that in absence of any record handed over by the outgoing functionaries, it was not possible to furnish information about members registered by the petitioner Trust in the past and requested the Charity Commissioner to treat that no member existed as on that date. According to the petitioner it enrolled members, one in the category of donor, 18 in the category of life members and 107 in the category of annual members by following criteria set out in the sanctioned scheme of the Trust. According to the petitioner, it addressed letters requesting the Charity Commissioner to provide guidelines for election to which no reply was given.
2.2 The Charity Commissioner issued public notice in Gujarat Samacher and Divya Bhaskar, Ahmedabad editions, inviting applications from the persons possessing eligibility set out in the said public notices and desirous of becoming member of the petitioner-Trust. By communication dated 27.01.2012 the petitioner requested the Charity Commissioner to cancel the aforesaid public notices and for not taking any action of making members in the petitioner Trust. The said application was heard and rejected by the Charity Commissioner on the ground that the same is not maintainable and also recording a finding on merit of the application that the advertisement is issued on interpreting direction of this Court in para 22 of the aforementioned judgment. Hence the petitioner has filed the present petition.
3.0 Mr.Joshi, learned Senior Counsel appearing for the petitioner contended that the public notices/advertisement published in the local newspapers at Annexure-I to the petition are contrary to the direction issued by this Court in First Appeal No.2932 of 2010, 2933 of 2010 and 2935 of 2010 and confirmed by the Hon'ble Supreme Court of India in its order dated 30.09.2011 and also contrary to the scheme settled by the Charity Commissioner under section 50-A of the Bombay Public Trusts Act.
3.1 He further contended that clauses (1) to (6) added by the Charity Commissioner should have been added after careful consideration. On conjoint reading of the scheme, the main categories are Patron, Donor, Life Member and Annual member and the qualification is prescribed in clause (6). However, the Charity Commissioner by adding clause (1) to (6) has traveled beyond the scheme sanctioned by the Charity Commissioner and the powers conferred upon him pursuant to the order of this Court.
3.2 Mr. Joshi., learned Senior Counsel for the petitioner further contended that the impugned public notices issued by the Charity Commissioner by interpretation of para 22 of the decision rendered by this Court in First Appeal No.2932 of 2010 and connected matters is erroneous and no such interpretation can be made.
3.3 He submitted that the Charity Commissioner could not have issued public notice/advertisement and he should have ascertained whether any members are available and if no members are available, he is required to invite objections and only thereafter he should have proceeded for enrolling new members.
3.4 Mr. Joshi, learned Senior Counsel therefore, submitted that the public notice/advertisement issued by the Charity Commissioner is beyond the scope and powers of the Charity Commissioner.
3.5 Mr. Joshi, learned Senior Counsel further contended that the Charity Commissioner has unilaterally changed the eligibility criteria for membership of the petitioner-Trust by prescribing altogether different amount than what is stipulated in the sanctioned Scheme of the petitioner Trust.
3.6 He submitted that the Charity Commissioner has also considered salaried persons to be eligible for membership even though such person is held to be ineligible to be member in the sanctioned scheme of the petitioner Trust.
3.7 According to him the Charity Commissioner has also included category or persons dehors the sanctioned scheme as if there are no members in the Trust who have acquired membership before the date on which the public notices have been issued. He further submitted that the four categories which are prescribed under the original scheme are not added. He therefore submitted that the prayers made in this petition deserve to be granted.
4.0 Mr. Upadhyaya, learned Advocate appearing for the respondent No.1 submitted that the Charity Commissioner has made amendment in the public notice which was issued on 25.01.2012 in local daily newspaper Gujarat Samacher and on 26.01.2012 in Divya Bhaskar. As per the amendment made by the Charity Commissioner the public notice was issued on 04.02.2012. In the said notice it is stated that (1) any person or institution donates a sum of Rs.5,00,000/- (Rupees five lacs or more) shall be considered as Patron of the Trust; (2) any person or institution donates a sum of Rs.1,00,000/- (Rupees one lace) or more shall be considered as Donor Member; (3) any person or institution pays a sum of Rs.5000/-(Rupees five thousand only) shall be considered as Life Member; and (4) any person or institution pays an amount of Rs.1000/- (Rupees one thousand only) shall be considered as Ordinary Member. He therefore submitted that the said criteria are just and proper and there cannot be any grievance on behalf of the petitioner.
5.0 As a result of hearing and perusal of the record this court is of the opinion that in view of subsequent advertisement dated 04.02.2012 for amendment, the grievance regarding the issuance of the public notices/advertisement that the Charity Commissioner has traveled beyond the scope of original scheme and bye-laws is now resolved between the parties.
6.0 Now, the the only issue which requires consideration is about the enrollment of new members. According to Mr. Joshi, learned Senior Counsel for the petitioner, the language used in the judgment is that if no members are available then only the Charity Commissioner has power for additional categories.
7.0 At this stage it is required to be noted the direction of this court which reads as under:
"The election shall be held by the Charity Commissioner from different categories of persons referred to in the bye-laws. It is clarified that if no members are available then new members can be enrolled from persons connected with School such as students, staff, parents or donors or any person rendering honorary services."
8.0 Thus, the election is required to be held from different categories of persons referred to in the bye-laws. It was also clarified that if no members are available, then new members can be enrolled from persons connected with school such as students, staff, parents, or donors or any person rendering honorary services. The Charity Commissioner has specified the categories which are already referred to in the bye-laws. Therefore the contention raised by the petitioner in this regard is misconceived. It was open to the Charity Commissioner to hold election from different categories. A perusal of the public notices/advertisement makes it clear that in column (4) of the public notice it is stated that the membership to be enrolled in those respective category will be from the persons connected with school such as students, staff, parents or donors or any person rendering honorary services.
9.0 It is also important to note that by communication dated 31.10.2011 the petitioner informed Charity Commissioner that since no record was handed over it was not possible to furnish information about the members registered by the petitioner Trust in the past and requested the Charity Commissioner to treat that no member existed as on that date. Thus, according to the petitioner itself, the Charity Commissioner was informed that no member existed as on that date. A conjoint reading of the order of this Court and the said letter, the Charity Commissioner is empowered to enroll new members inasmuch as in the order it is clarified that if no members are available then new members can be enrolled from persons connected with school such as students, staff, parents or donors or any person rendering honorary services. In view of these facts situation, it cannot be said that the Charity Commissioner has traveled beyond the scheme or even the order passed by this Court on 30.08.2011. Since the petitioner itself stated that no member is existing, it was open to the Charity Commissioner to enroll new members and the Charity Commissioner has fixed the criteria strictly according to the guidelines prescribed by this Court.
10.0 In the premises aforesaid, I do not find any merits in the petition. The same is therefore dismissed.
11.0 Before parting it is observed that if any attempt is made by any person for taking undue advantage of the public notice/advertisement, it is hoped that the Charity Commissioner will go by the membership as on the date of the judgement. Subsequent membership is not permissible in view of the judgment of this Court as well as the Hon'ble Supreme Court.
(K.S. JHAVERI, J.) niru* Top