Gujarat High Court
Jashwantpari Amrutpari Goswami vs Joint Charity Commissioner on 11 April, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/5714/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5714 of 2018
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JASHWANTPARI AMRUTPARI GOSWAMI
Versus
JOINT CHARITY COMMISSIONER
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Appearance:
MR NK MAJMUDAR(430) for the PETITIONER(s) No.
1,2,3,3.1,3.2,3.3,3.4,3.5,3.6,3.7,4,4.1,4.2,4.3,4.4,4.5
for the RESPONDENT(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 11/04/2018
ORAL ORDER
1. The present petition is filed under Article 226 of the Constitution of India essentially for challenging the legality and validity of the impugned order dated 16.3.2018 passed by the Joint Charity Commissioner, Bhavnagar in Misc. Application No.41/19/2017 (old No.41/08/2015).
2. The case of the petitioner is that one Bhavani Mata Temple Trust was established in the year 1996 and got registered on 30.10.1996 bearing registration No.A/977/Bhavnagar. There were five founder trustees at the relevant point of time. On 13.7.1978, one founder trustee, namely, Makubai Kalugar Goswami had executed a Will bequeathing all her rights and interest of worshiping Maa Bhavani Temple as a trustee of the trust in favour of her sole daughter, Page 1 of 17 C/SCA/5714/2018 ORDER namely, late Rambai Virambhai Bharthi, who was the mother of petitioner Nos.1 and 2. On 25.2.1985, said Makubai Kalugar Goswami expired. Since the mother of the petitioners has exercised the said bequeathing rights and interest as a trustee of the trust upto 1993, the mother of the petitioners preferred an application for inserting her name as trustee in PTR by way of preferring Change Report No.595 of 1993. The said change report was accepted vide order dated 4.12.1993 by the Deputy Charity Commissioner, Bhavnagar and her name was recorded as a trustee in the PTR. It is further the case of the petitioner that one Naranbharthi Keshavbharthi challenged the said order of Deputy Charity Commissioner by preferring Revision Application No.2 of 2006 before the Joint Charity Commissioner. Simultaneously, on 15.2.2005 late Rambai had also submitted an application before the Joint Charity Commissioner,Rajkot being Application No.4 of 2005 under Section 41A of the Bombay Public Trusts Act and sought various reliefs in the said application. Said application was partly allowed by the Joint Charity Commissioner, Rajkot vide order dated 28.9.2005, whereby late Rambai was ordered to be treated as a trustee of the trust. It is further the case of the petitioners that mother of the applicant erstwhile trustee of the trust Rambai passed away in the year 2007, precisely on 17.5.2007 and thereafter, the present petitioners submitted the Change Report No.155 of 2007 which was allowed by an order dated 11.5.2009 by the Assistant Charity Commissioner, Page 2 of 17 C/SCA/5714/2018 ORDER Bhavnagar and the names of the petitioners were recorded as trustees in the trust in PTR. It is further the case of the petitioners that father of the respondent Nos.2 to 5 has not permitted concerned trustees including the petitioner Nos.1 and 2 and their brothers to undertake and participate in the affairs of administration of the trust and though they were not trustees, they were interfering with the affairs and administration of the trust. Resultantly, the petitioners had preferred an application under Section 41A of the Bombay Public Trusts Act before the Joint Charity Commissioner, Rajkot for seeking various reliefs including the relief that father of the respondent and others may be restrained from interfering with administration and affairs of the trust. This was application was entertained by the Joint Charity Commissioner, Rajkot and by way of an order dated 23.7.2010, one Naranbharthi Keshavbharthi Goswami and others have been ordered not to interfere with the administration of the trust and despite the aforesaid order when interference was continued to be made, number of applications were submitted by the petitioners before concerned authorities and ultimately, the petitioners were constrained to prefer a petition before this Court being SCA No.14909 of 2012. It is further the case of the petitioner that even various other applications were also submitted before the concerned authorities and number of other proceedings were initiated right before this Court and so much so that one Special Criminal Application No.3828 of 2013 was Page 3 of 17 C/SCA/5714/2018 ORDER also preferred for seeking direction and thereafter, one another petition being SCA No.3114 of 2013 for seeking police protection. It is further the case of the petitioners that father of respondent Nos.2 to 5 had preferred Revision Application No.1 of 2007 (Old No.5 of 2006) and challenged the order passed by the Assistant Charity Commissioner in Change Report by virtue of which the petitioner Nos.1 and 2's names came to be entered as the trustees. Said Revision Application by order dated 16.3.2018 was dismissed by the Joint Charity Commissioner, Rajkot. Simultaneously, respondent Nos.2 to 5 have also preferred an application under Section 41A of the Bombay Public Trusts Act being Application No.41/19/2017 (Old No.41/08/2015) seeking various reliefs to the effect that they may be granted police protection so that they may discharge the functions as the trustees of the trust. Ultimately, it appears that said proceedings were conducted and adjudicated by the Joint Charity Commissioner, Rajkot, who, thereafter passed an order on 16.3.2018 which is made the subject matter of present petitioner under Article 226 of the Constitution of India.
3. While disposing of the aforesaid proceedings, the Joint Charity Commissioner, Rajkot passed the following order on 16.3.2018. The operative part of which is reproduced hereinafter :
"The application is partly allowed. The respondents are directed as under: Page 4 of 17 C/SCA/5714/2018 ORDER (1) The applicants should not be obstructed or prevented from doing administration and organization of the trust nor should the same be got done. Despite being this order, if respondents obstruct or prevent applicants from performing their duty as trustee, applicants can resort to taking necessary legal actions.
As the original respondent no. 3 Mr. Bharatpari Amaratpari Goswami and no. 4 Mr. Navnitpari Amaratpari Goswami have died, their heirs have been joined in this case, but such heirs cannot do administration of the trust till their names are registered on P.T.R. (2) The Inspector of Public Trust Registration Office shall have to seal alms box and gift box placed in the temple within 15 days from the date of this order and to submit report in this regard. He shall have to open the same in the presence of at least five trustees and five devotees every two months and assess the income (count money) and hand over the same to the trustees so that they can deposit the same in the bank account of the trust. The Inspector shall have to submit report thereof to this office. The trustees shall have to make entry of the amount in the books of account and deposit the said amount in the bank and produce the proof thereof before Assistant Charity Commissioner.
The Inspector shall have to be paid Rs. 1000/ from trust fund every time towards the procedure of opening the alms, gift box. The Inspector cannot claim T.A., D.A. in respect of performing such procedure.
(3) Only one bank account of the trust shall have to be operated. After passing resolution in respect of operation of bank account of the trust within 15 days from the date of this order, this office shall have to be informed about the same. If trustees fail to do so, fresh order can be passed in respect of operation of the bank account of the trust.
Page 5 of 17 C/SCA/5714/2018 ORDER(4) Trustees shall not have to use income earned from properties of the trust and income received in the temple for their personal use under any circumstances and the same shall have to be used only for the purpose of trust.
(5) The trustees can maintain cash balance upto Rs. 2000/ on hand. The payment of Rs. 5000/ or above shall have to be made by way of account payee cheque only.
No order as to costs.
The parties be informed about operative part of the order for its implementation. The Assistant Charity Commissioner, Bhavnagar also be informed about this order for prosecuting, in case of contempt of this order.
Pronounced at 13.05 hours today on 16/03/2018."
4. Feeling aggrieved by and dissatisfied with the said order passed by the Joint Charity Commissioner, the present petitioners, in this background, have submitted the petition in which the petitioners have been represented by Mr.N.K.Majmudar, learned advocate, who has been heard.
5. Mr.N.K.Majmudar, learned advocate appearing for the petitioners, has vehemently contended that there is a serious error committed by the Joint Charity Commissioner in passing an order and by issuing various directions under Section 41A of the Act. Learned advocate has further contended that while coming to this conclusion of issuing directions, neither the valid reasons are assigned nor cogent Page 6 of 17 C/SCA/5714/2018 ORDER reasons are assigned which would suggest that conclusion is perverse. Learned advocate has further contended that various directions have been issued and the direction which is issued more particularly in clause (2) of the said operative part that minimum 5 trustees and 5 donors will calculate the income and deposit in the bank at every two months' intervals and this direction, according to learned advocate, would create a complication as no names have been mentioned as to who 5 trustees are to conduct such exercise and, therefore, essentially, qua that direction, it has been contended that present petition is moved.
5.1 Mr.N.K.Majmudar, learned advocate, has further submitted that on account of serious interference on behalf of respondent Nos.2 to 5, the entire administration of the trust is at peril and there is complete mismanagement is to take palce if these respondents are allowed to interfere pursuant to the directions issued by the Joint Charity Commissioner. Learned advocate has further contended that in exercise of power under Section 41A of the Act, such kind of directions are not permissible and, therefore, there is a serious irregularity in exercising the jurisdiction which requires interference by this Court and by making number of submissions, learned advocate has contended that the order may kindly be corrected by granting the relief as prayed for in the petition. No other submissions have been made.
Page 7 of 17 C/SCA/5714/2018 ORDER6. Having heard the learned advocate appearing for the petitioners and having considered the decision delivered by the Joint Charity Commissioner at length, it has been found that Joint Charity Commissioner appears to have acted in the best interest of the trust affairs. It has also been found that looking to the various litigations which have been generated amongst the parties to the proceedings, such kind of directions are always found to be necessary by the Joint Charity Commissioner, resultantly, the directions are issued. It has also been categorically noticed by the Joint Charity Commissioner that these applicants, namely, the petitioners and the administrator are interrelated and for about 20 years, no accounts are maintained by the trust nor audit has taken place. It has also been noticed that lacs of rupees donations, though collected, have not been recorded in the account books. A meager amount of Rs.5000 to Rs.15000 has been mentioned as an income per annum and sizable amount has been siphoned away by controlling the affairs of the trust. It has also been noticed that every year, approximately 3 to 4 lacs income is getting generated in the trust and approximately around Rs.1 crore has been siphoned away within a span of 20 years. It has also been found that series of litigations interse have taken place in which at times police bandobast was also called for and when such was the grievous situation, it was found expedient by the Joint Charity Commissioner to Page 8 of 17 C/SCA/5714/2018 ORDER exercise the jurisdiction under Section 41A of the Act. While passing the impugned order, it has been found that not only the detailed reasons are assigned but, various litigations have also been kept in mind looking the malfunctioning to such an extent is also considered by the Joint Charity Commissioner and as such, a detailed order which has been passed is not possible to be construed as perverse, in any manner.
7. On the contrary, looking to the provision contained under the Act, a duty is cast upon the Charity Commissioner to see that the affairs of the trust are to be conducted in a just and proper manner. The Bombay Public Trusts Act has sufficiently empowered the Joint Charity Commissioner to control the affairs of the trust and to ensure that administration of the trust and the income thereof, can be properly accounted and properly administered and for which, necessary directions are always possible to be directed which is well within the competence. On the contrary, the law is well defined that for issuing appropriate direction, the office of the Charity Commissioner is specifically entrusted with the powers. The role of the Charity Commissioner at times is to act as a custodian of the trust and that is the purpose and object of investing power in the office of the Joint Charity Commissioner and as such, issuance of direction is absolutely well within the competence. Hence, the order in question is not possible to be treated as illegal in any manner. The scope of Section 41A of the Act has been spelt out by Page 9 of 17 C/SCA/5714/2018 ORDER series of decisions and one of such decisions delivered by this Court in a case reported in 1996 (3) GLR 307, wherein it has been categorically propounded that exercise of supervisory powers under the Act of 1950 are administrative in nature and principles of natural justice are not strictly required to be followed in all cases. Even to that extent, the Court has interpreted the provision which has invested the powers in the Charity Commissioner. The Charity Commissioner in a peculiar situation has got absolute and just power to issue direction and looking to the case on hand, it is clearly visible that the manner in which the litigation went on between the present petitioners and the respondents, the issuance of direction cannot be said to be unjust or improper. While exercising this jurisdiction, the stand of all the parties are considered and only upon minute examination, these directions have been issued and looking to the ongoing litigation, this was found to be expedient which cannot be said to be unjust, in any manner.
8. The Court is in the present proceedings exercising extraordinary jurisdiction under Article 226 of the Constitution of India and as stated above, the narration of entire conclusion and the order reflects no perversity. Hence, keeping in view the well propounded proposition of law on the issue of exercise of extraordinary jurisdiction, this Court is not inclined to accept the petition, having found no merit in the challenge. Once of such decisions which is kept in mind by this Court in the decision of the Apex Court in case of Sameer Suresh Gupta TR PA Holder V/s. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374. The relevant Page 10 of 17 C/SCA/5714/2018 ORDER observations of the said decision, since relevant, deserve to be quoted hereinafter :
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC
675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01072002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules Page 11 of 17 C/SCA/5714/2018 ORDER of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court
has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none
is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is selfevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to Page 12 of 17 C/SCA/5714/2018 ORDER act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place Page 13 of 17 C/SCA/5714/2018 ORDER thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.Page 14 of 17 C/SCA/5714/2018 ORDER
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence Page 15 of 17 C/SCA/5714/2018 ORDER under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision,
like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article
227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Page 16 of 17 C/SCA/5714/2018 ORDER Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
9. Considering the aforesaid proposition of law and keeping in mind the entire relevant record which is attached with the petition compilation, the Court is of the considered opinion that this is not a fit case in which any interference is called for nor any view is to be substituted and the petition found to be meritless, the same deserves to be dismissed. Hence, the same is dismissed with no order as to costs.
(A.J. SHASTRI, J) V.J. SATWARA Page 17 of 17