IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 2222 of 1988
For Approval and Signature:
Hon'ble ACTING CHIEF JUSTICE MR.JN BHATT
and
Hon'ble MR.JUSTICE K.A.PUJ
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1. Whether Reporters of Local Papers may be allowed : YES
to see the judgements?
2. To be referred to the Reporter or not? : YES
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
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GUJARAT STATE CONSUMERS’ PROTECTION CENTRE
Versus
STATE OF GUJARAT
————————————————————–
Appearance:
MR DM THAKKAR for Petitioner
MRS MANISHA LAVKUMAR for Respondents
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CORAM : ACTING CHIEF JUSTICE MR.JN BHATT
and
MR.JUSTICE K.A.PUJDate of decision: 03/05/2003
ORAL JUDGEMENT
(Per : ACTING CHIEF JUSTICE MR.JN BHATT)
#. The petitioner, by way of this petition, has
challenged the legality and validity of Sections 62 to 65
of the Bombay Public Trusts Act, 1950 (hereinafter
referred to as “the Act”), as also Rule 35 of the Bombay
Public Trusts (Gujarat) Rules, 1961 (hereinafter referred
to as “the Rules”), by invoking the provisions of Article
226 of the Constitution of India.
#. The petitioner-organization is floated for the
protection of consumers’ statutory rights, and as stated
in the petition, the petitioner-organization takes up,
interalia, certain public causes as public interest
litigation, and the present petition is of public
interest. The petitioner-organization is registered
under the Societies Registration Act, 1860, and also
under the Act.
#. The provisions of Sections 62 to 65 of the Act, which
are under challenge, are provided in Chapter IX of the
Act, and they are referable to `assessors’. Section 62
of the Act provides for the list of assessors, whereas
section 63 of the Act provides for securing presence of
the assessors by way of summons to attend the matter at a
specified place. Section 64 of the Act deals with the
cases in which the assessors are summoned, whereas
Section 65 of the Act authorizes the competent authority
as to the number of assessors to be called for help and
assistance in defined and earmarked cases. The entire
conspectus of the provisions incorporated in Sections 62
to 65 under the head of `Assessors’ in Chapter IX of the
Act would go to show that the legislature has enacted
these provisions so as to get help and aid in discharge
of functions by the competent authorities under the
charity organization. In view of the nature, quality and
type of cases to be decided by the competent authorities,
viz. Charity Commissioner or Deputy or Assistant Charity
Commissioner, it is provided in Section 65 of the Act
that such authority may choose not less than 3 and not
more than 5 assessors to aid and assist him. Further, it
is provided that in any inquiry relating to religions
denomination, the assessors chosen shall, as far as may
be practicable, belong to the particular religious
denomination. It is also provided that at the end of
inquiry, the authority shall record the opinion of the
assessors in writing, duly signed by the assessors, and
that such opinion shall form part of the proceeding and
due consideration shall be given to it in passing an
order or arriving at a decision or making report in the
inquiry. Therefore, obviously, the purpose and design
with which such provisions are incorporated in the Act,
is to render help and assistance to the officials of the
charity organization in view of diverse and multi faceted
activities and inquiries.
#. During the course of hearing of this petition, it was
brought to our notice that what is mainly complained of,
by the petitioner in this petition, is the compulsion
cast upon the persons who are summoned as assessors by
the competent officials of the charity organization. In
that regard, it has been contended that failure on the
part of an assessor to attend upon the summons issued
upon him under Section 63 to 65 of the Act, attracts
penalty of Rs.500/= payable by such assessor. At the
same time, an assessor who is summoned by the competent
authority to attend the time and place specified under
Section 65 of the Act is entitled for a meagre conveyance
allowance, i.e. Rs.3/= per day for the assessors from
the area of Greater Bombay and Rs.2/= per day for the
assessors from other places, as per Rule 35 of the Rules.
Section 35 of the Rules reads thus:
“35. Allowance to assessors under Section 65
-The assessors summoned shall be entitled to
allowance as follows:-
(1) Local Assessors — A conveyance to local
assessors of Rs.3/= per day in Greater Bombay and
Rs.2/= per day in other places.
(2) Assessors from outside — (a) For journeys
between places connected by rail, return second
class fare, (b) For journeys between places
connected by steamer, return fare by the upper
class, if there are two classes; by the middle or
second class; if there are more than two classes;
(c) For journeys between places not connected by
rail or steamer, actual expenses, subject to a
maximum of annas 7 per mile, (d) a daily
allowance of Rs.5 in Greater Bombay and Rs.3
elsewhere, for days of attendance including days
required for the journey;
Provided that the Charity Commissioner or Deputy
or Assistant Charity Commissioner may for reasons
recorded in writing, in the case of any assessor,
sanction allowances at such higher rates as he
may deem fit.”
#. In the above backdrop, the plea propounded by the
petitioner in the petition is that the provisions of
Section 62 to 65 of the Act as also of Rule 35 of the
Rules, are clearly bad, illegal and violative of Articles
14, 19(1)(g), and 21 of the Constitution of India.
#. On behalf of respondents, the then Joint Secretary,
Legal Department, Government of Gujarat, has filed
affidavit-in-reply, and it has been interalia contended
that the aforesaid provisions are neither illegal nor
violative of Articles 14, 19(1)(g) and 21 of the
Constitution of India. According to the respondents,
Rule 34(2) of the Rules provides for exemption from
liability to serve as an assessor. It is submitted that
in view of Rule 34(2)(f) of the Rules, the case of the
petitioner that any person cannot be compelled to serve
in a particular capacity is without any substance. It is
also contended that the provisions relatable to the
assessors have been validly enacted by the legislation,
and it cannot be said that in exercise of these
provisions, a person can be compelled to act contrary to
his beliefs and wishes and can be compelled to act as an
assessor. It is also denied that no guidelines are
prescribed as to how the list of assessors is required to
be prepared under the provisions of the Act and that
policy of pick and choose would be adopted by the
authorities because of these provisions. The allegations
of the provisions being illegal and arbitrary are also
countenanced. It is also denied that the challenged
provisions are susceptible to cause delay in inquiries.
#. We have heard Mr.D.M.Thakkar, learned counsel
appearing for the petitioner, who is appointed under the
scheme of Legal Aid under the Legal Services Authorities
Act, 1987, and Mrs.Manisha Lavkumar, learned Assistant
Government Pleader on behalf of respondents. We have
also examined and evaluated the legislative scheme, and
the purpose and objects of the impugned provisions of the
Act and Rules.
#. During the course of hearing, our attention was
jointly invited by the learned counsel for the parties to
the fact that the provisions of Sections 62 to 65
pertaining to the scheme of assessors in the Act have
been deleted by the State of Maharashtra vide Maharashtra
Act 22 of 1967. It was also jointly submitted before us
that instead of going into the constitutionality and
vires of the challenged provisions, it would be expedient
and necessary to issue appropriate directions to the
respondent-State in the light of legislative action taken
by the State of Maharashtra of deleting those provisions,
more particularly, when the same Act is applicable in
Gujarat in letter and spirit upon its adoption by the
State of Gujarat.
#. In view of the above, and more particularly, in view
of the changed socio-economic and legal perceptions and
environment prevalent after the gap of 52 years as the
Act is of 1950, we are keeping the question of vires, and
the issue of constitutionality raised originally in the
petition, open, and deem it necessary to direct the State
of Gujarat to consider and decide the object, design,
utility, functional value, and requirement of the
challenged provisions.
##. It is rightly said that nothing is constant but the
change. It is equally true that law should be stable.
However, it should not be standstill. No person,
authority, organization, society, State, or for that
purpose, nation, can afford to be oblivious of the
changed circumstances and events, and fail to get
adjusted with the changed circumstances, requirements,
aspirations as those who do not fall in line with this
concept, may not find place even in the waste paper
basket in the history.
##. The core concept, and the main perception of
enactment or a piece of legislation is designed in a
manner to resolve disputes in the field of conflict
management so as to do justice between the rival parties
or groups. The State of Maharashtra has taken a lead in
deleting those provisions in changed circumstances, and
that too as early as in 1967, i.e. within seventeen
years from the life of said legislation. The purpose and
object for which the provisions under challenge have been
deleted by another State, are relevant and the same also
require consideration by the respondent-State.
##. We may also mention at this stage that
jurisprudential philosophy and the concept of doctrine of
destitute could have been resorted to or employed in the
instant case in view of the fact that virtually, the
challenged provisions of the Act and Rules are in non-use
since long. However, in view of the joint submission
that appropriate directions for consideration by the
respondent-State for deletion or repeal of the challenged
provisions be issued, we desist ourselves from
meticulously examining and probing the aforesaid doctrine
qua the provisions under challenge. It is heartening to
note that on behalf of the respondents, it has been
stated that on appropriate directions being issued, the
provisions under challenge will be seriously examined and
shall be given due consideration by the State Government
for the purpose of either amendment or deletion of the
said provisions appropriately by keeping in mind the
action by the State of Maharashtra as back as in 1967.
We, therefore, decide not to go into the
constitutionality and also do not consider the
applicability of the aforesaid celebrated doctrine of
destitute to the questioned provisions and think it
expedient to direct the respondent-State to examine the
usefulness, utility, continuity etc. of the questioned
provisions in the light of changed socio-legal political
issues and circumstances. In view of the assurance
forthcoming from the respondent-State, we are confident
that the respondent-State shall seriously consider and
accord weightage to our recommendation by considering the
provisions of the Act and Rules under challenge,
expeditiously, within reasonable time, and in proper
perspective.
##. Before parting with the judgment, we deem it
imperative to place it on record, the help, assistance
and service rendered by the advocates, particularly, the
Mr.D.M.Thakkar, for helping the petitioner in espousing
its cause by providing effective legal representation.
##. The petition and the Rule shall therefore stand
disposed of in aforesaid terms. There shall be no order
as to costs.
(J.N.Bhatt, Acting C.J.)
(K.A.Puj, J.)
(sunil)