{"id":44121,"date":"2010-10-11T00:00:00","date_gmt":"2010-10-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jirawala-vs-charity-on-11-october-2010"},"modified":"2019-03-23T04:38:18","modified_gmt":"2019-03-22T23:08:18","slug":"jirawala-vs-charity-on-11-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jirawala-vs-charity-on-11-october-2010","title":{"rendered":"Jirawala vs Charity on 11 October, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jirawala vs Charity on 11 October, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/13052\/2010\t 10\/ 10\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 13052 of 2010\n \n\n \n \n=========================================================\n\n \n\nJIRAWALA\nBHERULAL DHIGADMALJI & 1 - Petitioner(s)\n \n\nVersus\n \n\nCHARITY\nCOMMISSIONER & 15 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nMI MERCHANT for\nPetitioner(s) : 1 - 2. \nNone for Respondent(s) : 1 -\n16. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 11\/10\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tHeard
\nlearned advocate Mr.M.I.Merchant for petitioners.\n<\/p>\n
2.\tIn
\npresent petition, petitioners have challenged order passed by Charity
\nCommissioner, State of Gujarat in Misc. Application No.10 of 2009
\nunder Section 41A of Bombay Public Trusts Act,1950 (for short  the
\nAct ).\n<\/p>\n
3.\tBrief
\nfacts of the case are that on 19.3.2002, the Trust was registered
\nunder the provisions of the Act and name of Trust is Balotra Jain
\nMitra Mandal Trust vide Registration No.F\/8599\/Ahmedabad and
\nGuj\/8745\/Ahmedabad and committee was also constituted from the
\nmembers. On 31.3.2005, the committee constituted at the time of
\nregistration was completed and after completion of first term, new
\nelection was required to be declared for appointment of new
\ncommittee. But, according to petitioners, no procedure was followed
\nby respondents and no change report was submitted before Dy. Charity
\nCommissioner, Ahmedabad as per Section  11(12) of the Constitution of
\nTrust. On completion of 2nd term, respondents have issued
\nagenda for election of committee. As per agenda,  form was required
\nto be submitted by candidate on 8.10.2008 and date of election was
\nnot declared in the agenda. On 4.10.2008 and 7.10.2008, both
\npetitioners have submitted their forms for their candidature. On
\n21.10.2008, respondent No.1 has intimated all the members vide letter
\ndated 21.10.2008 that election will be held on 2.11.2008. Thereafter,
\non 2.11.2008, applicants have inquired but, election was not actually
\nperformed on that day and no procedure was followed. In spite of that
\nrespondents have constituted committee of their old members. As the
\nelection procedure was not followed by petitioners and against the
\nRules of Constitution of Trust, respondents continued as trustees.
\nTherefore, objections were filed by petitioners against election
\nprocedure as well as appointment of new trustees before Dy. Charity
\nCommissioner, Ahmedabad. On 12.3.2009, one Misc. Civil Application
\nNo.10 of 2009 made before Charity Commissioner under Section 41A of
\nthe Act with a prayer to declare election dated 2.11.2008 as void and
\ndeclaring new election and also prayed to direct the respondents to
\nsubmit change report and to initiate action against respondents for
\nbreach of Section 22 of the Act. Before Charity Commissioner,
\nrespondents have filed their objections on 3.11.2009. Thereafter, it
\nhas been decided by Charity Commissioner.\n<\/p>\n
4.\tLearned
\nadvocate Mr.Merchant has raised contention before this Court pointing
\nout the fact that Page-14 (Annexure-A) being a candidate form but, it
\nhas not been produced on record by petitioners before Charity
\nCommissioner in respect to petitioner No.2. Similarly, Page-13 which
\nis also a nomination from in respect to petitioner No.1. Page-15
\n(Annexure-B) date of election has been declared \/ published dated
\n2.11.2008 where name of petitioners are there. Thereafter, page-16
\ndated 22.9.2008 last date of filling up nomination form and
\nwithdrawal date 10.10.2008 and last date was 8.10.2008. But, it has
\nbeen made clear in page-16 that in case if election is necessary,
\nthen date has to be notified by Election Officer. The objection
\nraised by petitioners on 4.11.2008. Similarly, Page-18 also objection
\nraised by petitioner No.2. The Constitution of Trust deed also
\nproduced on record by petitioners. Learned advocate Mr.Merchant has
\nread over entire order passed by Charity Commissioner in Misc. Civil
\nApplication No.10 of 2009 (Annexure-F, Page-34). After considering
\nsubmissions made by both parties and also considering written
\nstatement filed by respondents, Charity Commissioner has come to
\nconclusion that after last date of election – 31.3.2005, which period
\nof 3 years has been over, therefore, election of Trust is necessary
\nand election was fixed on 2.11.2008. On 5.11.2008, both petitioners
\nhave given their objections against the new trustees, who were
\nappointed \/ elected and advance objection has been filed before
\nCharity Commissioner that in case if any change report if it is to be
\nproduced by respondents before sanctioning it, petitioners may be
\ngiven opportunity of hearing.\n<\/p>\n
5.\tThe
\ngrievance of petitioners was that till date, change report was not
\nsubmitted by respondents though newly elected body was came into
\nforce. There was no illegality or irregularity committed by
\nrespondents in election. For that, no documentary evidence was
\nproduced by petitioners before Charity Commissioner. The petitioners
\nare not able to point out to Charity Commissioner that in election,
\nRules of election have been violated by any of respondents and
\nelection was not carried out as per Rules of election given in Trust
\ndeed. The Charity Commissioner has come to conclusion that as and
\nwhen change report submitted by respondents, at that occasion it is
\nopen for petitioners to raise objection and on that basis,
\npetitioners can challenge election. The petitioners also failed to
\nestablish before Charity Commissioner by producing relevant and
\ncogent evidence to the effect that new executive committee which has
\nbeen constituted by way of election is found to be contrary to
\nprovisions of the Act and also contrary to Constitution of Trust
\ndeed.\n<\/p>\n
6.\tAccording
\nto respondents, after completion of period of first executive
\ncommittee on 31.3.2005, in election no nomination form has been
\nfilled up by any member. On the contrary, entire body means general
\nbody of Trust has suggested that let old executive committee member
\nmay remain continued without any change. Therefore, without making
\nany change, old executive committee members  remained continued as
\nmembers of new executive committee and therefore, allegations which
\nhave been made by petitioners are not correct. However, petitioners
\nare having opportunity as and when change report submitted by
\nrespondents before Charity Commissioner \/ Dy.  Charity Commissioner,
\nat that occasion they are entitled to raise objections. For that,
\nobjection application was made by both petitioners on 5.11.2008. The
\npetitioners are also entitled to challenge election at the time when
\nchange report was submitted by respondents. After submitting
\nobjections, they can challenge election. But looking to the record
\nproduced before the  Charity Commissioner, it is not sufficient to
\nhold that election which has been held or new executive committee
\nmembers which are elected was remained continued on the basis of
\nsuggestion made by entire body in favour of old committee. Therefore,
\nit is very difficult to accept submissions made by petitioners that
\nelection which has been held on 2.11.2008 is held to be illegal or
\ncontrary to provisions of the Act. Therefore,  Charity Commissioner
\nhas rejected application submitted by petitioners.\n<\/p>\n
7.\tThe
\nCharity Commissioner is having a limited power under Section 41A of
\nthe Act. From perusal of the record, it appears that except these two
\npetitioners, no other persons or members of Trust are having any
\nobjection against present executive committee of respondent Trust. No
\nillegality or irregularity is pointed out by petitioners in respect
\nto management of present existing executive committee of the Trust.
\nSection 41A of the Act gives power to Charity Commissioner to issue
\ndirection to trustees and other persons of public trust or any person
\nconnected therewith to ensure that such trust is properly
\nadministered and the income thereof is properly accounted for or duly
\nappropriated and apply to the objects and for the purposes of the
\ntrust and it shall be a duty of every such person to comply with
\ndirection issued to him under sub-section-1 of Section 41A of the
\nAct. Therefore, in view of aforesaid provisions made in the Act,
\npetitioners failed to establish before Charity Commissioner that
\ntrust is not properly administered and income thereof is not properly
\naccounted for or duly appropriated and apply to the objects and for
\nthe purposes of the Trust. Therefore, the Charity Commissioner having
\na very limited jurisdiction for interfering with administration of
\nthe trust for which petitioners have totally failed to establish
\ntheir case which covered under Section 41A of the Act. The change
\nreport if it is not produced by respondents, for that as and when
\nsuch change report produced by respondents, petitioners are entitled
\nto raise objection as it was already noted in letters dated 4.11.2008
\nand 10.11.2008 by both petitioners. Therefore, learned advocate
\nMr.Merchant relied upon a decision of this Court in case of
\nDevkrushnadasji Guru Dharmadasji and Ors. v. State of Gujarat,
\nreported in 2008 (1) GLH 427 wherein it has been held that if any
\ngrievance in respect to Section 22\/22A of the Act, the  Charity
\nCommissioner cannot issue any direction to respondent Trust or
\nexecutive committee because this being not a subject matter of
\nissuing direction under Section 41A of the Act. He relied upon
\nPara.20 and 21 of the aforesaid decision. The facts are altogether
\ndifferent which has been examined by  Charity Commissioner in present
\ncase and change report which required to be submitted under Section
\n22\/22A of the Act,, the Charity Commissioner has no jurisdiction to
\nissue any direction under Section 41A of the Act. Therefore, decision
\nwhich has been relied upon by learned advocate Mr.Merchant is not
\napplicable to facts of present case.\n<\/p>\n
8.\tThis
\nCourt has, in case of  Navinchandra Jasani & Ors. v.
\nPravinchandra Jasani & Ors.<\/a> reported in 2003 (1) GLR 392, held
\nthat scope of power of  Charity Commissioner under Section 41A to
\nissue direction is having a power as an administrative in nature and
\nnot even quasi-judicial. Where judicial determination of a dispute is
\ninvolved, the Joint  Charity Commissioner cannot issue any direction.
\nThe view taken by this Court in case of Syedna Mohamed Burhanuddin v.
\n Charity Commissioner reported in 1992 (1) GLH 331 has been followed
\nby this Court.\n<\/p>\n
9.\tIn
\nview of aforesaid decision of this Court and also considering
\ndecision which has been relied by learned advocate Mr.Merchant and
\nafter perusing the order passed by  Charity Commissioner being an
\nadministrative order, has rightly examined the matter and  Charity
\nCommissioner has no jurisdiction or power to decide the dispute or to
\nexamine any question or to determine it being quasi-judicial
\nauthority. According to my opinion,  Charity Commissioner has rightly
\nexamined the matter on the basis of records which are available with
\nhim and after considering written statement filed by respondents.
\nBoth petitioners are failed to establish their case while producing
\nrelevant records before  Charity Commissioner and no illegality or
\nirregularity has been pointed out by petitioners before  Charity
\nCommissioner in respect to election which has been held on 2.11.2008.
\nIf old body is remained continued on the basis of suggestion made by
\nentire body of trust, then it cannot consider to be any illegality.
\nThis Court is having very limited jurisdiction while exercising power
\nunder Articles 226\/227 of the Constitution of India. The power of
\njudicial review is confined to decision making process as decided by
\nApex Court n case of Union of India and Anr. v. K.G.Soni,<\/a> reported in
\n(2006) 6 SCC 794 wherein it has been observed in Para.13 and 14 as
\nunder :\n<\/p>\n
13.\tIn
\nUnion of India and Anr. v. G. Ganayutham<\/a> (1997 [7] SCC 463), this
\nCourt summed up the position relating to proportionality in
\nparagraphs 31 and 32, which read as follows:\n<\/p>\n
 31.\tThe
\ncurrent position of proportionality in administrative law in England
\nand India can be summarized as follows:\n<\/p>\n
(1)\tTo
\njudge the validity of any administrative order or statutory
\ndiscretion, normally the Wednesbury test is to be applied to find out
\nif the decision was illegal or suffered from procedural improprieties
\nor was one which no sensible decision-maker could, on the material
\nbefore him and within the framework of the law, have arrived at. The
\ncourt would consider whether relevant matters had not been taken into
\naccount or whether irrelevant matters had been taken into account or
\nwhether the action was not bona fide. The court would also consider
\nwhether the decision was absurd or perverse. The court would not
\nhowever go into the correctness of the choice made by the
\nadministrator amongst the various alternatives open to him.  Nor
\ncould the court substitute its decision to that of the administrator.\n<\/p>\n
This
\nis the Wednesbury (1948 1 KB 223) test.\n<\/p>\n
(2)\tThe
\ncourt would not interfere with the administrator s decision unless
\nit was illegal or suffered from procedural impropriety or was
\nirrational  in the sense that it was in outrageous defiance of logic
\nor moral standards. The possibility of other tests, including
\nproportionality being brought into English administrative law in
\nfuture is not ruled out.  These are the CCSU (1985 AC 374)
\nprinciples.\n<\/p>\n
(3)(a)
\nAs per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith
\n(1996 (1) All ER 257) as long as the Convention is not incorporated
\ninto English law, the English courts merely exercise a secondary
\njudgment to find out if the decision-maker could have, on the
\nmaterial before him, arrived at the primary judgment in the manner he
\nhas done.\n<\/p>\n
(3)(b)
\nIf the Convention is incorporated in England making available the
\nprinciple of proportionality, then the English courts will render
\nprimary judgment on the validity of the<\/p>\n
administrative
\naction and find out if the restriction is disproportionate or
\nexcessive or is not based upon a fair balancing of the fundamental
\nfreedom and the need for the restriction thereupon.\n<\/p>\n
(4)(a)
\nThe position in our country, in administrative law, where no
\nfundamental freedoms as aforesaid are involved, is that the
\ncourts\/tribunals will only play a secondary role while the primary
\njudgment as to reasonableness will remain with the executive or
\nadministrative authority.  The secondary judgment of the court is to
\nbe based on Wednesbury and CCSU principles as stated by Lord Greene
\nand Lord Diplock respectively to find if the executive or
\nadministrative authority has reasonably arrived at his decision as
\nthe primary authority.\n<\/p>\n
(4)(b)
\nWhether in the case of administrative or executive action affecting
\nfundamental freedoms, the courts in our country will apply the
\nprinciple of  proportionality  and assume a primary role, is left
\nopen, to be decided in an appropriate case where such action is
\nalleged to offend fundamental freedoms. It will be then necessary to
\ndecide whether the courts will have a primary role only if the
\nfreedoms under Articles 19, 21 etc. are involved and not for Article\n<\/p>\n
14. <\/p>\n
14.\tThe
\ncommon thread running through in all these decisions is that the
\nCourt should not interfere with the administrator s decision unless
\nit was illogical or suffers from procedural impropriety or was
\nshocking to the conscience of the Court, in the sense that it was in
\ndefiance of logic or moral standards. In view of what has been stated
\nin the Wednesbury s case (supra) the Court would not go into the
\ncorrectness of the choice made by the administrator open to him and
\nthe Court should not  substitute its decision to that of the
\nadministrator. The scope of judicial review is limited to the
\ndeficiency in decision-making process and not the decision.\n<\/p>\n
10.\tHence,
\naccording to my opinion, contentions which are raised by learned
\nadvocate Mr.Merchant cannot be accepted in light of reasoning given
\nby Charity Commissioner. Therefore, there is no substance in present
\npetition. Accordingly, present petition is dismissed.\n<\/p>\n
(H.K.RATHOD,J.)<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jirawala vs Charity on 11 October, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-44121","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJirawala vs Charity on 11 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jirawala-vs-charity-on-11-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jirawala vs Charity on 11 October, 2010 - 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