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SCA/13052/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13052 of 2010
=========================================================
JIRAWALA
BHERULAL DHIGADMALJI & 1 - Petitioner(s)
Versus
CHARITY
COMMISSIONER & 15 - Respondent(s)
=========================================================
Appearance
:
MR
MI MERCHANT for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 -
16.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/10/2010
ORAL
ORDER
1. Heard
learned advocate Mr.M.I.Merchant for petitioners.
2. In
present petition, petitioners have challenged order passed by Charity
Commissioner, State of Gujarat in Misc. Application No.10 of 2009
under Section 41A of Bombay Public Trusts Act,1950 (for short the
Act ).
3. Brief
facts of the case are that on 19.3.2002, the Trust was registered
under the provisions of the Act and name of Trust is Balotra Jain
Mitra Mandal Trust vide Registration No.F/8599/Ahmedabad and
Guj/8745/Ahmedabad and committee was also constituted from the
members. On 31.3.2005, the committee constituted at the time of
registration was completed and after completion of first term, new
election was required to be declared for appointment of new
committee. But, according to petitioners, no procedure was followed
by respondents and no change report was submitted before Dy. Charity
Commissioner, Ahmedabad as per Section 11(12) of the Constitution of
Trust. On completion of 2nd term, respondents have issued
agenda for election of committee. As per agenda, form was required
to be submitted by candidate on 8.10.2008 and date of election was
not declared in the agenda. On 4.10.2008 and 7.10.2008, both
petitioners have submitted their forms for their candidature. On
21.10.2008, respondent No.1 has intimated all the members vide letter
dated 21.10.2008 that election will be held on 2.11.2008. Thereafter,
on 2.11.2008, applicants have inquired but, election was not actually
performed on that day and no procedure was followed. In spite of that
respondents have constituted committee of their old members. As the
election procedure was not followed by petitioners and against the
Rules of Constitution of Trust, respondents continued as trustees.
Therefore, objections were filed by petitioners against election
procedure as well as appointment of new trustees before Dy. Charity
Commissioner, Ahmedabad. On 12.3.2009, one Misc. Civil Application
No.10 of 2009 made before Charity Commissioner under Section 41A of
the Act with a prayer to declare election dated 2.11.2008 as void and
declaring new election and also prayed to direct the respondents to
submit change report and to initiate action against respondents for
breach of Section 22 of the Act. Before Charity Commissioner,
respondents have filed their objections on 3.11.2009. Thereafter, it
has been decided by Charity Commissioner.
4. Learned
advocate Mr.Merchant has raised contention before this Court pointing
out the fact that Page-14 (Annexure-A) being a candidate form but, it
has not been produced on record by petitioners before Charity
Commissioner in respect to petitioner No.2. Similarly, Page-13 which
is also a nomination from in respect to petitioner No.1. Page-15
(Annexure-B) date of election has been declared / published dated
2.11.2008 where name of petitioners are there. Thereafter, page-16
dated 22.9.2008 last date of filling up nomination form and
withdrawal date 10.10.2008 and last date was 8.10.2008. But, it has
been made clear in page-16 that in case if election is necessary,
then date has to be notified by Election Officer. The objection
raised by petitioners on 4.11.2008. Similarly, Page-18 also objection
raised by petitioner No.2. The Constitution of Trust deed also
produced on record by petitioners. Learned advocate Mr.Merchant has
read over entire order passed by Charity Commissioner in Misc. Civil
Application No.10 of 2009 (Annexure-F, Page-34). After considering
submissions made by both parties and also considering written
statement filed by respondents, Charity Commissioner has come to
conclusion that after last date of election – 31.3.2005, which period
of 3 years has been over, therefore, election of Trust is necessary
and election was fixed on 2.11.2008. On 5.11.2008, both petitioners
have given their objections against the new trustees, who were
appointed / elected and advance objection has been filed before
Charity Commissioner that in case if any change report if it is to be
produced by respondents before sanctioning it, petitioners may be
given opportunity of hearing.
5. The
grievance of petitioners was that till date, change report was not
submitted by respondents though newly elected body was came into
force. There was no illegality or irregularity committed by
respondents in election. For that, no documentary evidence was
produced by petitioners before Charity Commissioner. The petitioners
are not able to point out to Charity Commissioner that in election,
Rules of election have been violated by any of respondents and
election was not carried out as per Rules of election given in Trust
deed. The Charity Commissioner has come to conclusion that as and
when change report submitted by respondents, at that occasion it is
open for petitioners to raise objection and on that basis,
petitioners can challenge election. The petitioners also failed to
establish before Charity Commissioner by producing relevant and
cogent evidence to the effect that new executive committee which has
been constituted by way of election is found to be contrary to
provisions of the Act and also contrary to Constitution of Trust
deed.
6. According
to respondents, after completion of period of first executive
committee on 31.3.2005, in election no nomination form has been
filled up by any member. On the contrary, entire body means general
body of Trust has suggested that let old executive committee member
may remain continued without any change. Therefore, without making
any change, old executive committee members remained continued as
members of new executive committee and therefore, allegations which
have been made by petitioners are not correct. However, petitioners
are having opportunity as and when change report submitted by
respondents before Charity Commissioner / Dy. Charity Commissioner,
at that occasion they are entitled to raise objections. For that,
objection application was made by both petitioners on 5.11.2008. The
petitioners are also entitled to challenge election at the time when
change report was submitted by respondents. After submitting
objections, they can challenge election. But looking to the record
produced before the Charity Commissioner, it is not sufficient to
hold that election which has been held or new executive committee
members which are elected was remained continued on the basis of
suggestion made by entire body in favour of old committee. Therefore,
it is very difficult to accept submissions made by petitioners that
election which has been held on 2.11.2008 is held to be illegal or
contrary to provisions of the Act. Therefore, Charity Commissioner
has rejected application submitted by petitioners.
7. The
Charity Commissioner is having a limited power under Section 41A of
the Act. From perusal of the record, it appears that except these two
petitioners, no other persons or members of Trust are having any
objection against present executive committee of respondent Trust. No
illegality or irregularity is pointed out by petitioners in respect
to management of present existing executive committee of the Trust.
Section 41A of the Act gives power to Charity Commissioner to issue
direction to trustees and other persons of public trust or any person
connected therewith to ensure that such trust is properly
administered and the income thereof is properly accounted for or duly
appropriated and apply to the objects and for the purposes of the
trust and it shall be a duty of every such person to comply with
direction issued to him under sub-section-1 of Section 41A of the
Act. Therefore, in view of aforesaid provisions made in the Act,
petitioners failed to establish before Charity Commissioner that
trust is not properly administered and income thereof is not properly
accounted for or duly appropriated and apply to the objects and for
the purposes of the Trust. Therefore, the Charity Commissioner having
a very limited jurisdiction for interfering with administration of
the trust for which petitioners have totally failed to establish
their case which covered under Section 41A of the Act. The change
report if it is not produced by respondents, for that as and when
such change report produced by respondents, petitioners are entitled
to raise objection as it was already noted in letters dated 4.11.2008
and 10.11.2008 by both petitioners. Therefore, learned advocate
Mr.Merchant relied upon a decision of this Court in case of
Devkrushnadasji Guru Dharmadasji and Ors. v. State of Gujarat,
reported in 2008 (1) GLH 427 wherein it has been held that if any
grievance in respect to Section 22/22A of the Act, the Charity
Commissioner cannot issue any direction to respondent Trust or
executive committee because this being not a subject matter of
issuing direction under Section 41A of the Act. He relied upon
Para.20 and 21 of the aforesaid decision. The facts are altogether
different which has been examined by Charity Commissioner in present
case and change report which required to be submitted under Section
22/22A of the Act,, the Charity Commissioner has no jurisdiction to
issue any direction under Section 41A of the Act. Therefore, decision
which has been relied upon by learned advocate Mr.Merchant is not
applicable to facts of present case.
8. This
Court has, in case of Navinchandra Jasani & Ors. v.
Pravinchandra Jasani & Ors. reported in 2003 (1) GLR 392, held
that scope of power of Charity Commissioner under Section 41A to
issue direction is having a power as an administrative in nature and
not even quasi-judicial. Where judicial determination of a dispute is
involved, the Joint Charity Commissioner cannot issue any direction.
The view taken by this Court in case of Syedna Mohamed Burhanuddin v.
Charity Commissioner reported in 1992 (1) GLH 331 has been followed
by this Court.
9. In
view of aforesaid decision of this Court and also considering
decision which has been relied by learned advocate Mr.Merchant and
after perusing the order passed by Charity Commissioner being an
administrative order, has rightly examined the matter and Charity
Commissioner has no jurisdiction or power to decide the dispute or to
examine any question or to determine it being quasi-judicial
authority. According to my opinion, Charity Commissioner has rightly
examined the matter on the basis of records which are available with
him and after considering written statement filed by respondents.
Both petitioners are failed to establish their case while producing
relevant records before Charity Commissioner and no illegality or
irregularity has been pointed out by petitioners before Charity
Commissioner in respect to election which has been held on 2.11.2008.
If old body is remained continued on the basis of suggestion made by
entire body of trust, then it cannot consider to be any illegality.
This Court is having very limited jurisdiction while exercising power
under Articles 226/227 of the Constitution of India. The power of
judicial review is confined to decision making process as decided by
Apex Court n case of Union of India and Anr. v. K.G.Soni, reported in
(2006) 6 SCC 794 wherein it has been observed in Para.13 and 14 as
under :
13. In
Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), this
Court summed up the position relating to proportionality in
paragraphs 31 and 32, which read as follows:
31. The
current position of proportionality in administrative law in England
and India can be summarized as follows:
(1) To
judge the validity of any administrative order or statutory
discretion, normally the Wednesbury test is to be applied to find out
if the decision was illegal or suffered from procedural improprieties
or was one which no sensible decision-maker could, on the material
before him and within the framework of the law, have arrived at. The
court would consider whether relevant matters had not been taken into
account or whether irrelevant matters had been taken into account or
whether the action was not bona fide. The court would also consider
whether the decision was absurd or perverse. The court would not
however go into the correctness of the choice made by the
administrator amongst the various alternatives open to him. Nor
could the court substitute its decision to that of the administrator.
This
is the Wednesbury (1948 1 KB 223) test.
(2) The
court would not interfere with the administrator s decision unless
it was illegal or suffered from procedural impropriety or was
irrational in the sense that it was in outrageous defiance of logic
or moral standards. The possibility of other tests, including
proportionality being brought into English administrative law in
future is not ruled out. These are the CCSU (1985 AC 374)
principles.
(3)(a)
As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith
(1996 (1) All ER 257) as long as the Convention is not incorporated
into English law, the English courts merely exercise a secondary
judgment to find out if the decision-maker could have, on the
material before him, arrived at the primary judgment in the manner he
has done.
(3)(b)
If the Convention is incorporated in England making available the
principle of proportionality, then the English courts will render
primary judgment on the validity of the
administrative
action and find out if the restriction is disproportionate or
excessive or is not based upon a fair balancing of the fundamental
freedom and the need for the restriction thereupon.
(4)(a)
The position in our country, in administrative law, where no
fundamental freedoms as aforesaid are involved, is that the
courts/tribunals will only play a secondary role while the primary
judgment as to reasonableness will remain with the executive or
administrative authority. The secondary judgment of the court is to
be based on Wednesbury and CCSU principles as stated by Lord Greene
and Lord Diplock respectively to find if the executive or
administrative authority has reasonably arrived at his decision as
the primary authority.
(4)(b)
Whether in the case of administrative or executive action affecting
fundamental freedoms, the courts in our country will apply the
principle of proportionality and assume a primary role, is left
open, to be decided in an appropriate case where such action is
alleged to offend fundamental freedoms. It will be then necessary to
decide whether the courts will have a primary role only if the
freedoms under Articles 19, 21 etc. are involved and not for Article
14.
14. The
common thread running through in all these decisions is that the
Court should not interfere with the administrator s decision unless
it was illogical or suffers from procedural impropriety or was
shocking to the conscience of the Court, in the sense that it was in
defiance of logic or moral standards. In view of what has been stated
in the Wednesbury s case (supra) the Court would not go into the
correctness of the choice made by the administrator open to him and
the Court should not substitute its decision to that of the
administrator. The scope of judicial review is limited to the
deficiency in decision-making process and not the decision.
10. Hence,
according to my opinion, contentions which are raised by learned
advocate Mr.Merchant cannot be accepted in light of reasoning given
by Charity Commissioner. Therefore, there is no substance in present
petition. Accordingly, present petition is dismissed.
(H.K.RATHOD,J.)
(vipul)
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