Gujarat High Court
Uttam vs Arvindbhai on 20 August, 2010
Gujarat High Court Case Information System
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SCA/2389/2005 13/ 13 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2389 of 2005
WITH
CIVIL
APPLICATION NO.1827 of 2005
AND
CIVIL APPLICATION NO.12807 of 2005
IN
SPECIAL CIVIL APPLICATION NO.2389 OF 2005
==========================================
UTTAM
RAO NARAYAN PATIL - Petitioner(s)
Versus
ARVINDBHAI
J.SOLANKI & 9 - Respondent(s)
==========================================
Appearance
:
MR
CJ VIN for Petitioner(s) : 1 - 2.
NOTICE
SERVED BY DS for Respondent(s) : 1, 9,
MR H.D.DAVE, AGP for
Respondent(s) : 2,
MR HARSHADRAY A DAVE for Respondent(s) : 3 -
4.
MR DHAVAL D VYAS for Respondent(s) : 5 - 6.
UNSERVED-EXPIRED
(N) for Respondent(s) : 7,
MR RR MARSHALL for Respondent(s) :
8,
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CORAM
:
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 23/12/2005
ORAL
ORDER
This petition has been preferred against the order passed by the Joint Charity Commissioner, Surat in Appeal No.80 of 2001, Misc.Application No.51 of 2001 and Suo-motu Revision Application No.6 of 2003 under section 70, 41-A and 70-A of the Bombay Public Trust Act,1950 (hereinafter referred to as ?Sthe Act,1950?? for sake of brevity and convenience) respectively.
2. I have heard the learned counsel appearing for the petitioner, who has mainly submitted that the orders passed in all the aforesaid matters, Joint Charity Commissioner, Surat is patently de hors the facts and law. It is also submitted by the learned advocate for the petitioner that the resolution dated 9th September,1990 was passed by a trust (the public welfare society), whereby it was resolved that two trustees namely Farook G. Shaikh and Arvindhbhai J. Solanki, who have resigned on 3rd September,1990, their resignation have been accepted and the new trustees namely Hiralal Narayan Patil and Kalpesh Madhubhai Dhumal were resolved to be trustees of the trust and these two names were sent to the office of the Charity Commissioner in the Change Report No.509 of 1990 on 8th October,1990, which was approved by Assistant Charity Commissioner vide his order dated 29th June,1991. Similarly, further it was resolved by the trust that the name of two trustees namely Hiralal Narayan Patil and Bhagwan Ramdas Bhachav, as trustees and their names were sent to the office of Assistant Charity Commissioner vide resolution dated 6th October,1990. The same was sent to the Assistant Charity Commissioner as Change Report No.311 of 2001. It was allowed by the Assistant Charity Commissioner on 16th August,2001. Against the order passed by the Assistant Charity Commissioner dated 16th August,2001, an appeal was preferred bearing Appeal No.80 of 2001 under section 70 of the Act,1950. Similarly, Misc.Application bearing No.51 of 2001 was also preferred under section 41-A of the Act,1950. In the above proceedings, the Joint Charity Commissioner found that order was passed in Change Report No.509 of 1990. He initiates Suo-motu Revision bearing No.6 of 2003. It is also submitted by the learned advocate for the petitioner that looking to the order passed by the Joint Charity Commissioner, Surat, it seems that several observations made in the order were factually incorrect. As per the resolution, Assistant Charity Commissioner has not perused the documents. On the contrary, the Assistant Charity Commissioner has perused several exhibit numbers. The observations made in the order passed by the Joint Charity Commissioner to the effect that instead of two outgoing trustees, four trustees have been offered by the trust and, therefore, the order passed by the Assistant Charity Commissioner is quashed. But looking to the constitution of the Trust, it is clear that there should be maximum nine and minimum seven trustees in the trust. The number of existing trustees and four new trustees never exceeds the figure nine. The names of four trustees have never been suggested by the trust. If the two resolutions are viewed accurately, the name of only two trustees were suggested by the trust. Learned advocate for the petitioner submitted that the applicants in the Appeal No.80 of 2001 were the trustees, who have resigned in the year 1990. Probably they have done nothing, for a decade, except preferring appeal in the year 2001. This appeal is preferred at much belated stage, after their resignation. It is also submitted by the learned advocate for the petitioner that the order passed by the Joint Charity Commissioner, Surat inviting further membership in the trust is also not necessary. In view of the fact that looking to the scheme of the trust, who have completed 19 years of age and ready to give certain sum of Rs.151/- and Rs.501/- can get the membership. Such type of membership, if allowed to be revised for the elections, to be held by Joint Charity Commissioner, it will be unnecessary addition of the names of the members, and, therefore, on the basis of existing list of membership, the election ought to be held and, therefore, the direction given by Joint Charity Commissioner, Surat deserves to be quashed and set aside. It is also submitted by the learned advocate for the petitioner that the order passed by the Joint Charity Commission travels beyond the scope and jurisdiction under section 41-A and 70 of the Act,1950 and, therefore also, the order passed by the Joint Charity Commissioner deserves to be quashed and set aside.
3. I have heard the learned counsel Mr.D.D. Vyas appearing for respondent Nos.5 & 6, who has submitted that there is no illegality in the orders passed by Joint Charity Commissioner, Surat in Appeal No.80 of 2001, Misc.Application No.51 of 2001 and Suo-motu Revision Application No.6 of 2003. In fact, no such resignation has been tendered by the concerned trustees as stated in the so called resolution passed by the trust dated 9th September,1990 and 6th October,1990. The first resolution dated 9th September,1990 introduces two trustees, whose Change Report No.509 of 1990 were sent to the Assistant Charity Commissioner on 8th October,1990. In that report, there was no reference of the second meeting dated 6th October,1990. In fact, the second meetings was never conducted and such resolution has never been passed. The so called orders of the Assistant Charity Commissioner dated 29th June,1991 (allowed Change Report No.509 of 1990) and second order dated 16th August,2001 (Allowed Change Report No.311 of 2001) were passed without affording any opportunity of being heard to the respondent No.6 and Arvindbhai Solanki (who has been shown as resigned trustee). Moreover, looking to both the orders passed by the Assistant Charity Commissioner, Surat it seems that they are in fact, ?SRubber stamp orders??. No care has been taken by Assistant Charity Commissioner for verification of resignation of respondent No.6 and Arvindbhai Solanki and it has been rightly criticised by the Joint Charity Commissioner in the impugned order while quashing the order passed by the Assistant Charity Commissioner.
4. It is also submitted by the learned advocate for the respondent Nos. 5 & 6 that as per section 22 of the Act,1950, the change report ought to be submitted within 90 days from the date of resolution. The second so called meeting was conducted on 6th October,1990 and the change report was submitted to the Assistant Charity Commissioner after a period of decade. The Change Report No.311 of 2001 dated 16th August,2001. In fact, no such meetings have ever been conveyed and no such resolutions have ever been passed and, therefore, it is correctly critisized by Joint Charity Commissioner and, therefore, the orders passed by the Joint Charity Commissioner, may not be interfered with in exercise of powers conferred under Article 227 of the Constitution of India.
It is also submitted by the learned counsel for the respondent Nos. 5 & 6 that since the date of registration of the trust i.e. from the Year 1990, no election has ever been held and the original trustees are continued as trustees. Neither list of members has been revised. New trustees are also required by holding fresh elections and, therefore, the order passed by the Joint Charity Commissioner to invite fresh application for membership is true, correct and in consonance with the facts of the case.
5. It is also submitted by the learned counsel appearing for the respondent Nos.5&6 that rightly the order passed by the Assistant Charity Commissioner dated 29th June,1991 has been quashed and set aside by Joint Charity Commissioner because the Charity Commissioner is in ?Sloco perentis?? position so far as trust is concerned. Rubber stamp order cannot be continued, especially, when no opportunity of being heard was given. He has also relied upon several judgments viz. A.I.R. 1998 SC 1624 and judgment delivered by this Court in Letters Patent Appeal No.2 of 2004, 8 G.L.R. 878, 65 B.L.R. 27 and contended that rightly the order passed by the Assistant Charity Commissioner has been quashed and set aside by Joint Charity Commissioner. This Court may not exercise powers conferred under Article 227 of the Constitution of India.
6. Having heard the counsel for both sides and looking to the facts and circumstances of the case, I see no reason to interfere with the order passed by the Joint Charity Commissioner, Surat in Appeal No.80 of 2001, Misc. Application No.51 of 2001 and Suo-motu Revision No. 6 of 2003, especially for the following facts and reasons:-
(i) ?SThe Public Welfare Society?? - a trust resolved in the meeting dated 9/9/1990, whereby the so called resignation of two trustees namely Farook G. Shaikh and Arvindbhai Solanki were accepted and the name of two new trustees namely Hiralal Narayan Patil and Kalpesh Dhumal were suggested. The resolution bearing Change Report No.509 of 1990 was submitted on 8th October,1990 to the office of the Assistant Charity Commissioner. It is also alleged by the petitioner that a second resolution was also passed by the trust on 6th October,1990, wherein the resignation of two outgoing trustees were accepted and name of new two trustees namely Hiralal Patil and Bhagwan Ramdas Bhachav were selected. This meeting though was conveyed on 6th October,1990, the first Change Report No.509 of 1990 was not reflecting anything about the so called second meeting. Though Change Report was sent on 8th October,1990 to the office of the Assistant Charity Commissioner, which is subsequent to the second meeting, the trust was silent about the so called second meeting. Moreover, looking to the facts and circumstances of the case, twice the resignation of the two outgoing trustees were accepted and by two different Change Report namely 509 of 1990 and 311 of 2001, three names of trustees have been suggested.
The second Change Report, which was on the basis of the meeting held on 6/10/1990, was sent to the Assistant Charity Commissioner on 13th August,2001 i.e. practically after a period of one decade. This has been rightly critisized by the Joint Charity Commissioner and correctness of facts as to second meeting been rightly denied. It has been correctly appreciated by the Joint Charity Commissioner that twice the resignations were accepted in two different meetings. Four names were sent as trustees in two meetings. One name was common. If on earlier occasion resignations were accepted there was no need to hold meeting to accept resignations again. No opportunity of being heard has been given before passing orders by the Assistant Charity Commissioner. Therefore, orders passed by Joint Charity Commissioner are correct whereby the orders of Assistant Charity Commissioner have been quashed and set aside.
(ii) Looking to both these orders of the Assistant Charity Commissioner and the records of the case (rubber stamp orders), it is clear that the orders are passed mechanically and admittedly without giving any opportunity of being heard to respondent no.6 as well as Arvindbhai Solanki, who is said to have resigned from the trust. More than once, it is resolved by the trust that the resignations have been tendered and accepted. Similarly more than one change reports have been submitted in the office of the Assistant Charity Commissioner. More than once the change reports have been accepted by the Assistant Charity Commissioner without looking to the previous change report. This fact is rightly appreciated in the impugned order.
(iii) It is also rightly observed by Joint Charity Commissioner that the trust has not held any election of the trustees since registration of the trust and original trustees are appointed as continued as trustees. It requires the elections of fresh trustees at interval of five years. There is no change in the list of members of the trust and, therefore, the direction given by Joint Charity Commissioner to hold the election within stipulated time and invite application for membership. On the basis of fresh list of membership the true election can be held, I see no reason to come to the conclusion that such direction violates any law much less, the provisions of Act,1950. Fresh elections cannot be held on the basis of obsolete list. The respondent has submitted that fresh list ought to be prepared by inviting application for membership, who applied for membership and who were denied in past. This argument is not accepted by this Court because it was never canvassed before Lower authority and secondly due to the fact that it tantamounts to choosing certain persons from the people at large, who can be members of the trust is already there in the trust deed. The membership will be revised as per direction given by the Joint Charity Commissioner, which is not against the provisions of the Act,1950 or against the trust deed. Trust deed also permit new membership, who have completed 19 years and upon certain payment can be made to the members of the trust. Thus, election at the interval of every five years and the new membership is already envisaged in the trust deed. It is not a new concept evolved by the Joint Charity Commissioner. It is inbuilt and interwoven in the trust deed. The direction given is to give effect to the provision of the Act,1950 and trust deed. Direction given by Joint Charity Commissioner inviting applications for becoming members and to hold election within stipulated time, in my opinion, this is in consonance with the trust deed and the provisions of the Act,1950.
(iv) Looking to the facts of the present case, the orders passed by Joint Charity Commissioner in respect of the order passed in the Change Report No.509 of 1990 is true and correct and the directions given in Misc.Application No.51 of 2001 under section 41-A is also true and correct. I see no reason to interfere with the direction given by the Joint Charity Commissioner and similarly, the order passed in Suo-motu Revision Application No.6 of 2003 also requires no interference by this Court. Similarly, order passed in Appeal No.80 of 2001 also requires no interference by this Court except for revising the time schedule given by the Joint Charity Commissioner for inviting application in local daily newspapers, which, as per the impugned order, was, 31st March,2005, which has been replaced as 31st March,2006 and time-limit for giving wide publicity by advertisement in local daily newspapers, (which will be given by the trust) now will be on or before 15th February,2006 and elections will be held on or before 30th April,2006. Also over and above, aforesaid change is made in the order passed by the Joint Charity Commissioner.
7. In view of these facts, there is no substance in this petition and the same is hereby dismissed. Notice is discharged with no order as to costs. Interim relief, if any, stands vacated. The registry is directed to send the records and proceedings of the case to the Joint Charity Commissioner, Surat forthwith.
8. In view of the aforesaid order passed in Special Civil Application No.2389 of 2005, the Civil Application No.1827 of 2005 and Civil Application No.12807 of 2005 in Special Civil Application No.2389 of 2005, do not survive.
(D.N.PATEL, J) dipti Top