Gujarat High Court
Vitthaldas vs Joint on 17 July, 2012
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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SCA/7384/2012 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7384 of 2012
For
Approval & Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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VITTHALDAS
CHANDULAL DWARKADASSHAH & 6 - Petitioner(s)
Versus
JOINT
CHARITY COMMISSIONER & 6 - Respondent(s)
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Appearance :
MR
SP MAJMUDAR for Petitioner(s) : 1 - 7.MR PP MAJMUDAR for
Petitioner(s) : 1 - 7.
MR CB UPADHYAYA for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 2 - 5.
MR
PUSHPADATTA VYAS for Respondent(s) : 2 - 3,5 -
7.
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 17/07/2012
ORAL JUDGMENT
The petitioners have taken out present petition seeking below mentioned relief:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the order dated 10.5.2012 passed by respondent No.1 herein in Misc. Application No.6 of 2011 in so far as the same is against the petitioners as well as quashing and setting aside the directions issued in the said order (at ANNEXURE-A hereto) and further be pleased to direct that all the proceedings conducted by the majority members are legal and valid and further be pleased to quash and set aside the proceedings conducted by the minority members;"
2. Mr. Majmudar, learned advocate, has appeared for the petitioners and Mr. Vyas, learned advocate, has appeared for the respondent Nos.2, 3 and 5 to 7.
Mr. Upadhayay, learned advocate, has entered appearance for the respondent No.1, but has not attended the hearing when the matter is called out and taken up for hearing.
3. In light of the submissions made by learned advocates for the petitioners and respondents, it appears that in view of certain subsequent events which have taken place, present petition can be disposed of without going into the details and controversy brought before this Court by the petitioners by way of present petition.
4. In present petition, the petitioners have brought under challenge order dated 10.5.2012. The petitioners have also prayed to set aside the proceedings conducted by the minority members and to direct that the proceedings conducted by the majority members are legal and valid. One of such proceedings include a decision, allegedly taken by majority, of removing the President.
Of course, the said issue gives rise to another issue viz. whether the body has power to remove elected President, or not.
However, as mentioned above, in view of subsequent events, it is not necessary to examine the said disputes, more particularly because elections of the body have been held afresh and new body and President have been elected.
4.1 The relief prayed for by the petitioners gives out that essentially there is dispute about the issue as to which group of trustees and members of the trust enjoy majority and which group is in minority. The said issue is the issue which can be considered and decided by the appropriate authority constituted under the Act.
5. It is submitted during the hearing today that after the order dated 10.5.2012 came to be passed, election of the Managing Committee of the trust has been held.
On this count also, differences have arisen inasmuch as both groups appear to have held elections separately.
Ordinarily, election would decide as to which of the two groups enjoy majority, however, in present case, as mentioned above, according to the petitioners' claim as well as claim of the respondent Nos.2, 3 and 5 to 7, two different set of election process have been undertaken.
6. It is not in dispute that after the election, change reports have been filed before the Charity Commissioner.
It is claimed that both groups have filed their respective change reports.
The said change reports are under consideration before the Commissioner.
In view of the provisions under the Act, the Commissioner would pass appropriate order in respect of the change reports and that therefore, at this stage, the said aspect is not required to be considered.
At the same time, in view of the said subsequent events, viz. conduct of election and submission of change reports, the controversy with regard to the order dated 10.5.2012 and/or any other events which occurred after the institution of the proceedings in which said order dated 10.5.2012 came to be passed, is now not required to be examined on merits.
6.1 It appears that before the order dated 10.5.2012 came to be passed, Joint Charity Commissioner has passed an interlocutory order dated 7.3.2011. Learned counsel for the petitioners has submitted that on the strength of the said order, certain events have taken place. It appears that there is controversy amongst the two groups in respect of the decisions which are claimed to have been taken pursuant to and on the strength of the order dated 7.3.2011. After the final order dated 10.5.2012, the said interim order dated 7.3.2011 would not independently exist.
6.2 The decisions, if any, taken pursuant to and on the basis of the order dated 7.3.2011 are not subject matter of present petition and therefore, are not required to be examined. Suffice it to say that if either of the parties is aggrieved by such action, then, the aggrieved party will have to take out appropriate proceedings against such action before the competent authority and the authority will decide the same in accordance with law and in accordance with provisions in the Trust Deed of the trust.
In view of the position which obtains at present, i.e. the fact that fresh election is held and the change reports filed by the two groups are pending before the Charity Commissioner, present petition can be disposed of with below mentioned order:-
[A] The Charity Commissioner will take-up for consideration the change reports submitted by the petitioners and the respondents and decide the same in accordance with law after hearing the concerned and affected parties and after considering the provisions in the Deed of Trust and relevant provisions under the Act. If any other action taken either by the petitioners or the respondents are brought under challenge before the competent authority, as per the provisions of the Act, then, the said dispute also will be considered and decided by the competent authority in accordance with law and as per applicable provisions under the Deed of Trust.
With the aforesaid observations and directions, present petition stands disposed of.
Direct service is permitted.
(K.M.Thaker, J.) kdc Top